EXHIBIT 4.2
EXECUTION COPY
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CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
as Company,
and
THE BANK OF NEW YORK
as Trustee, Registrar and
Paying Agent
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INDENTURE
Dated as of July 8, 1999
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$150,000,000 aggregate principal amount of 14.0% Senior Notes due 2009
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE......................... 1
SECTION 1.1 Definitions................................................. 1
SECTION 1.2 Incorporation by Reference of TIA........................... 20
SECTION 1.3 Rules of Construction....................................... 20
ARTICLE II THE NOTES.......................................................... 20
SECTION 2.1 Form and Dating............................................. 20
SECTION 2.2 Execution and Authentication................................ 21
SECTION 2.3 Registrar and Paying Agent.................................. 22
SECTION 2.4 Paying Agent To Hold Assets in Trust........................ 23
SECTION 2.5 List of Holders............................................. 23
SECTION 2.6 Book-Entry Provisions for Global Notes...................... 23
SECTION 2.7 Registration of Transfer and Exchange....................... 24
SECTION 2.8 Replacement Notes........................................... 28
SECTION 2.9 Outstanding Notes........................................... 29
SECTION 2.10 Treasury Notes.............................................. 29
SECTION 2.11 Temporary Notes............................................. 29
SECTION 2.12 Cancellation................................................ 30
SECTION 2.13 Defaulted Interest.......................................... 30
SECTION 2.14 CUSIP, ISIN and Common Code Numbers......................... 30
SECTION 2.15 Deposit of Moneys........................................... 31
SECTION 2.16 Certain Matters Relating to Global Notes.................... 31
ARTICLE III REDEMPTION......................................................... 31
SECTION 3.1 Optional Redemption......................................... 31
SECTION 3.2 Notices to Trustee.......................................... 31
SECTION 3.3 Selection of Notes to Be Redeemed........................... 31
SECTION 3.4 Notice of Redemption........................................ 32
SECTION 3.5 Effect of Notice of Redemption.............................. 33
SECTION 3.6 Deposit of Redemption Price................................. 33
SECTION 3.7 Notes Redeemed in Part...................................... 34
ARTICLE IV COVENANTS.......................................................... 34
SECTION 4.1 Payment of Notes............................................ 34
SECTION 4.2 Maintenance of Office or Agency............................. 34
SECTION 4.3 Limitation on Restricted Payments........................... 35
SECTION 4.4 Limitation on Indebtedness.................................. 37
SECTION 4.5 Corporate Existence......................................... 41
SECTION 4.6 Payment of Taxes and Other Claims........................... 41
SECTION 4.7 Maintenance of Properties and Insurance..................... 41
SECTION 4.8 Compliance Certificate; Notice of Default................... 42
SECTION 4.9 Compliance with Laws........................................ 42
SECTION 4.10 Reports..................................................... 43
SECTION 4.11 Waiver of Stay; Extension or Usury Laws..................... 44
Page
SECTION 4.12 Limitation on Transactions with Shareholders
and Affiliates.............................................. 44
SECTION 4.13 Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries........................... 45
SECTION 4.14 Limitation on Liens......................................... 46
SECTION 4.15 Change of Control........................................... 46
SECTION 4.16 Limitation on Asset Sales................................... 48
SECTION 4.17 Limitation on Issuance of Guarantees of Indebtedness by
Restricted Subsidiaries..................................... 51
SECTION 4.18 Business of the Company; Restriction on Transfers of
Existing Business........................................... 52
SECTION 4.19 Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries..................................... 52
SECTION 4.20 Additional Amounts.......................................... 52
SECTION 4.21 Payment of Non-Income Taxes and Similar Charges............. 53
SECTION 4.22 Restriction on Sale/Leaseback Transactions.................. 53
SECTION 4.23 Limitation on Investment Company Activities................. 53
ARTICLE V SUCCESSOR CORPORATION.............................................. 54
SECTION 5.1 Consolidation, Merger, and Sale of Assets................... 54
SECTION 5.2 Successor Corporation Substituted........................... 54
ARTICLE VI DEFAULT AND REMEDIES............................................... 55
SECTION 6.1 Events of Default........................................... 55
SECTION 6.2 Acceleration................................................ 56
SECTION 6.3 Other Remedies.............................................. 56
SECTION 6.4 The Trustee May Enforce Claims Without Possession of
Securities.................................................. 57
SECTION 6.5 Rights and Remedies Cumulative.............................. 57
SECTION 6.6 Delay or Omission Not Waiver................................ 57
SECTION 6.7 Waiver of Past Defaults..................................... 57
SECTION 6.8 Control by Majority......................................... 58
SECTION 6.9 Limitation on Suits......................................... 58
SECTION 6.10 Rights of Holders To Receive Payment........................ 58
SECTION 6.11 Collection Suit by Trustee.................................. 58
SECTION 6.12 Trustee May File Proofs of Claim............................ 59
SECTION 6.13 Priorities.................................................. 59
SECTION 6.14 Restoration of Rights and Remedies.......................... 60
SECTION 6.15 Undertaking for Costs....................................... 60
SECTION 6.16 Compliance Certificate; Notices of Default.................. 60
ARTICLE VII TRUSTEE............................................................ 60
SECTION 7.1 Duties of Trustee........................................... 60
SECTION 7.2 Rights of Trustee........................................... 61
SECTION 7.3 Individual Rights of Trustee................................ 63
SECTION 7.4 Trustee's Disclaimer........................................ 63
SECTION 7.5 Notice of Default........................................... 63
Page
SECTION 7.6 Report by Trustee to Holders................................ 63
SECTION 7.7 Compensation and Indemnity.................................. 64
SECTION 7.8 Replacement of Trustee...................................... 65
SECTION 7.9 Successor Trustee by Merger, etc............................ 66
SECTION 7.10 Corporate Trustee Required; Eligibility..................... 66
SECTION 7.11 Disqualification; Conflicting Interests..................... 66
SECTION 7.12 Preferential Collection of Claims Against Company........... 66
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE............................ 67
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance.... 67
SECTION 8.2 Legal Defeasance and Discharge.............................. 67
SECTION 8.3 Covenant Defeasance......................................... 67
SECTION 8.4 Conditions to Legal or Covenant Defeasance.................. 68
SECTION 8.5 Satisfaction and Discharge of Indenture..................... 69
SECTION 8.6 Survival of Certain Obligations............................. 70
SECTION 8.7 Acknowledgment of Discharge by Trustee...................... 70
SECTION 8.8 Application of Trust Moneys................................. 70
SECTION 8.9 Repayment to the Company; Unclaimed Money................... 70
SECTION 8.10 Reinstatement............................................... 71
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS................................ 71
SECTION 9.1 Without Consent of Holders of Notes......................... 71
SECTION 9.2 With Consent of Holders of Notes............................ 72
SECTION 9.3 Compliance with TIA......................................... 73
SECTION 9.4 Revocation and Effect of Consents........................... 73
SECTION 9.5 Notation on or Exchange of Notes............................ 74
SECTION 9.6 Trustee to Sign Amendments, etc............................. 74
ARTICLE X COLLATERAL AND SECURITY............................................. 74
SECTION 10.1 Collateral Agreement........................................ 74
SECTION 10.2 Recording and Opinions...................................... 75
SECTION 10.3 Release of Collateral....................................... 75
SECTION 10.4 Certificates of the Company................................. 76
SECTION 10.5 Authorization of Actions to Be Taken by the Trustee Under
the Collateral Agreement.................................... 76
SECTION 10.6 Authorization of Receipt of Funds by the Trustee Under the
Collateral Agreement........................................ 76
SECTION 10.7 Termination of Security Interest............................ 77
ARTICLE XI MISCELLANEOUS....................................................... 77
SECTION 11.1 TIA Controls................................................ 77
SECTION 11.2 Notices..................................................... 77
SECTION 11.3 Communications by Holders with Other Holders................ 78
SECTION 11.4 Certificate and Opinion as to Conditions Precedent.......... 79
SECTION 11.5 Statements Required in Certificate or Opinion............... 79
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar................... 79
Page
SECTION 11.7 Legal Holidays.............................................. 79
SECTION 11.8 Governing Law............................................... 80
SECTION 11.9 Submission to Jurisdiction; Appointment of Agent for
Service; Waiver............................................. 80
SECTION 11.10 No Adverse Interpretation of Other Agreements............... 81
SECTION 11.11 No Personal Liability of Directors, Officers, Employees,
Stockholders or Incorporators............................... 81
SECTION 11.12 Currency Indemnity.......................................... 81
SECTION 11.13 Successors.................................................. 81
SECTION 11.14 Counterpart Originals....................................... 81
SECTION 11.15 Severability................................................ 82
SECTION 11.16 Table of Contents, Headings, etc............................ 82
EXHIBITS
Exhibit A - Form of Initial Global Note
Exhibit B - Form of Initial Definitive Note
Exhibit C - Form of Exchange Global Note
Exhibit D - Form of Exchange Definitive Note
NOTE: This Table of Contents shall not, for any purpose, be deemed to be
part of this Indenture.
CROSS-REFERENCE TABLE
TIA Section Indenture Section
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310(a)(1)........................................ 7.10
(a)(2)........................................ 7.10
(a)(3)........................................ NA
(a)(4)........................................ NA
(a)(5)........................................ 7.8; 7.11
(b)........................................... 7.8; 7.11
(c)........................................... NA
311(a)........................................... 7.12
(b)........................................... 7.12
(c)........................................... NA
312(a)........................................... 2.5
(b)........................................... 11.3
(c)........................................... 11.3
313(a)........................................... 7.6
(b)(1)........................................ 11.3
(b)(2)........................................ 7.6
(c)........................................... 7.6; 11.2
(d)........................................... 7.6
314(a)........................................... 4.8; 4.10; 11.2; 11.4
(b)........................................... 11.2
(c)(1)........................................ 7.2; 11.4
(c)(2)........................................ 7.2; 11.4
(c)(3)........................................ NA
(d)........................................... 11.3;11.4; 11.5
(e)........................................... 11.5
(f)........................................... NA
315(a)........................................... 7.1(c)
(b)........................................... 7.5; 11.2
(c)........................................... 7.1(a)
(d)........................................... 6.8; 7.1(c)
(e)........................................... 6.15
316(a)(last sentence)............................ 2.9
(a)(1)(A)..................................... 6.8
(a)(1)(B)..................................... 6.7
(a)(2)........................................ NA
(b)........................................... 6.10
317(a)(1)........................................ 6.11
(a)(2)........................................ 6.12
(b)........................................... 2.4
318(a)........................................... 11.1
(c)........................................... 11.1
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NA means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
INDENTURE, dated as of July 8, 1999, between Cybernet Internet
Services International, Inc., a Delaware corporation (the "Company"),
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and The Bank of New York, a New York banking corporation, as Trustee,
Registrar and Paying Agent.
The Company has duly authorized the creation and issuance of (i) its 14.0%
Senior Notes due 2009 issued on the date hereof (the "Original Notes"), (ii)
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Additional Notes (as defined herein) that may be issued on any Issue Date (all
such notes referred to in (i) and (ii) being referred to as the "Initial
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Notes"), and (iii) 14.0% Senior Notes due 2009 to be issued in exchange for
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Initial Notes pursuant to a Registration Rights Agreement (the "Exchange Notes"
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and, together with the Initial Notes, the "Notes"); and, to provide therefor,
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the Company has duly authorized the execution and delivery of this Indenture.
Except as otherwise provided herein, the Notes shall be limited to $350,000,000
in aggregate principal amount outstanding, of which $150,000,000 in aggregate
principal amount shall be initially issued on the date hereof. Subject to the
conditions and compliance with the covenants set forth herein, the Company may
issue up to $200,000,000 aggregate principal amount of Additional Notes.
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.1 Definitions. For purposes of this Indenture, unless
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otherwise specifically indicated herein, the term "consolidated" with respect to
any Person refers to such Person consolidated with its Restricted Subsidiaries,
and excludes from such consolidation any Unrestricted Subsidiary as if such
Unrestricted Subsidiary were not an Affiliate of such Person. In addition, for
purposes of the following definitions and this Indenture generally, all
calculations and determinations shall be made in accordance with U.S. GAAP and
shall be based upon the consolidated financial statements of the Company and its
subsidiaries prepared in accordance with U.S. GAAP. As used in this Indenture,
the following terms shall have the following meanings:
"Acquired Indebtedness" means, Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or is merged or consolidated
with or into the Company or any Restricted Subsidiary or assumed in connection
with an Asset Acquisition by the Company or a Restricted Subsidiary and not
incurred in connection with, or in anticipation of, such Person becoming a
Restricted Subsidiary, such merger or consolidation or such Asset Acquisition;
provided that Indebtedness of such Person which is redeemed, defeased, retired
or otherwise repaid at the time of or immediately upon the consummation of the
transactions by which such Person becomes a Restricted Subsidiary or is merged
or consolidated with or into the Company or any Restricted Subsidiary or such
Asset Acquisition shall not be Indebtedness.
"Additional Amounts" shall have the meaning set forth in Section 4.20.
"Additional Notes" means up to $200,000,000 aggregate principal amount of
14.0% Senior Notes due 2009 issued under the terms of this Indenture after the
Closing Date.
"Affiliate" as applied to any Person means any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, Authenticating Agent or co-
Registrar.
"Agent Members" shall have the meaning set forth in Section 2.16.
"Asset Acquisition" means (i) any capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by the Company or any
Restricted Subsidiary to any other Person, or any acquisition or purchase of
Equity Interests of any other Person by the Company or any Restricted
Subsidiary, in either case pursuant to which such Person shall become a
Restricted Subsidiary or shall be consolidated, merged with or into the Company
or any Restricted Subsidiary or (ii) an acquisition by the Company or any of its
Restricted Subsidiaries of the property and assets of any Person (other than the
Company or any of its Restricted Subsidiaries) that constitute substantially all
of an operating unit or line of business of such Person or which is otherwise
outside the ordinary course of business.
"Asset Sale" means any sale, transfer or other disposition (including by
way of merger, consolidation or sale-leaseback transactions) in one transaction
or a series of related transactions by the Company or any of its Restricted
Subsidiaries to any Person (other than the Company or any of its Restricted
Subsidiaries) of (i) all or any of the Equity Interests in any Subsidiary, (ii)
all or substantially all of the property and assets of an operating unit or line
of business of the Company or any of its Restricted Subsidiaries or (iii) any
other property and assets of the Company or any of its Restricted Subsidiaries
outside the ordinary course of business (including the receipt of proceeds paid
on account of the loss of or damage to any property or asset and awards of
compensation for any asset taken by condemnation, eminent domain or similar
proceedings). For the purposes of this definition, the term "Asset Sale" shall
not include (a) any transaction consummated in compliance with Section 5.1 and
the creation of any Lien not prohibited by Section 4.14; provided, however, that
any transaction consummated in compliance with such Section 5.1, involving a
sale, conveyance, assignment, transfer, lease or other disposal of less than all
of the properties or assets of the Company and the Restricted Subsidiaries shall
be deemed to be an Asset Sale with respect to the properties or assets of the
Company and Restricted Subsidiaries that are not so sold, conveyed, assigned,
transferred, leased or otherwise disposed of in such transaction; (b) sales of
property or equipment that has become worn out, obsolete or damaged or otherwise
unsuitable for use in connection with the business of the Company or any
Restricted Subsidiary, as the case may be; (c) sales of telecommunications
network capacity of the Company or any Restricted Subsidiary including sales of
indefeasible rights of use of or transfers of dark fiber optic transmission
cable, in each case in the ordinary course of business; and (d) any transaction
consummated in compliance with Section 4.3. In addition, solely for purposes of
Section 4.16, any sale, conveyance, transfer, lease or other
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disposition of any property or asset, whether in one transaction or a series of
related transactions, involving assets with a Fair Market Value not in excess of
C1.0 million in any fiscal year shall be deemed not to be an "Asset Sale."
"Asset Sale Offer" shall have the meaning set forth in Section 4.16.
"Attributable Debt" means, in respect of a Sale/Leaseback Transaction, as
at the time of determination, the present value (discounted at the interest rate
borne by the Notes, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended).
"Authenticating Agent" shall have the meaning set forth in Section 2.2.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal, state
or foreign law for the relief of creditors.
"Board of Directors" means the Board of Directors of the Company.
"Board Resolution" means a duly authorized resolution of the Board of
Directors.
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banking institutions are authorized or required by law to close
in New York City or Munich.
"Capital Stock" means with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, including, without limitation,
if such Person is a partnership, partnership interests (whether general or
limited) and any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, such partnership.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with U.S.
GAAP, is required to be capitalized and reflected as a liability on the balance
sheet of such Person; and "Capitalized Lease Obligation" is defined to mean, at
the time any determination thereof is to be made, the discounted present value
of the rental obligations under such lease.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the U.S. government or any agency or instrumentality
thereof or by the German government or any agency or instrumentality thereof
having maturities of not more than 360 days from the date of acquisition; (b)
overnight bank deposits or certificates of deposit, eurodollar time deposits and
bankers' acceptances with maturities of 360 days or less from the date of
acquisition, in each case with any commercial bank having capital and surplus in
excess of $500 million and outstanding debt rated at least "A" or the equivalent
thereof by S&P or Moody's; provided, however, that securities deposited in the
Collateral Account may have a
3
Stated Maturity as late as July 1, 2002; (c) repurchase obligations with a term
of not more than seven days for underlying securities of the types described in
clauses (a) and (b) entered into with any financial institution meeting the
qualifications specified in clause (b) above; (d) commercial paper rated at
least A-1 or P-1, or the equivalent thereof, by S&P or Moody's, respectively,
and in each case maturing within 360 days after the date of acquisition; and (e)
direct obligations of, or obligations fully and unconditionally guaranteed by,
any member of the European Community rated at least "AAA" or the equivalent
thereof by both S&P and Moody's.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means such time as (i) a "person" or "group" (within
the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) (other than a
Permitted Holder) becomes the ultimate "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act) of more than 35% of the total voting power of the
then outstanding Voting Stock of the Company on a fully diluted basis, provided
that the relevant threshold in the case of Cybermind Interactive Europe and
Holger Timm shall be 40%; (ii) individuals who at the beginning of any period of
two consecutive calendar years constituted the Board of Directors (together with
any directors who are members of the Board of Directors on the date hereof and
any new directors whose election by the Board of Directors or whose nomination
for election by the Company's stockholders was approved by a vote of at least
two-thirds of the members of the Board of Directors then still in office who
either were members of the Board of Directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the members of such Board of Directors
then in office; (iii) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company to any
such "person" or "group" (other than to a Restricted Subsidiary); or (iv) the
merger or consolidation of the Company with or into another corporation or the
merger of another corporation with or into the Company with the effect that
immediately after such transaction any such "person" or "group" of persons or
entities shall have become the beneficial owner of securities of the surviving
corporation of such merger or consolidation representing a majority of the total
voting power of the then outstanding Voting Stock of the surviving corporation.
"Change of Control Offer" shall have the meaning set forth in Section
4.15.
"Change of Control Payment" shall have the meaning set forth in Section
4.15.
"Change of Control Payment Date" shall have the meaning set forth in
Section 4.15.
"Closing Date" means the date of this Indenture.
"Collateral" means all funds and securities in the Collateral Account and
the proceeds thereof.
"Collateral Account" means (i) the account established by the Collateral
Agent pursuant to the terms of the Collateral Agreement for the deposit of
funds, the Government Securities or the Cash Equivalents (as defined therein)
purchased by, or purchased at the
4
direction of, the Company with a portion of the net proceeds from the offering
of the Initial Notes and (ii) a similar account established in connection with
the issuance of Additional Notes.
"Collateral Agent" means (i) The Bank of New York, as collateral agent
under the Collateral Agreement dated the date hereof until a successor replaces
it in accordance with the terms of the Collateral Agreement and thereafter means
such successor and (ii) a collateral agent appointed under a collateral
agreement executed in connection with the issuance of Additional Notes.
"Collateral Agreement" means (i) the Collateral Agreement, dated the date
hereof, between the Company and The Bank of New York as Trustee and Collateral
Agent, governing the disbursement of funds from the Collateral Account or (ii) a
similar collateral agreement executed in connection with the issuance of
Additional Notes.
"Commission" is defined to mean the United States Securities and Exchange
Commission, as from time to time constituted, or, if at any time after the
execution of the Indenture such commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means the common stock, par value $.001 per share, of the
Company.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Company Order" means a written order or request signed in the name of the
Company by two officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company or any other officer so authorized
and delivered to the Trustee.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the (i) Consolidated Net Income of such Person for such period plus, to the
extent deducted in computing such Consolidated Net Income (and without
duplication) Consolidated Fixed Charges, (ii) any provision for taxes (other
than taxes (either positive or negative) attributable to extraordinary and
nonrecurring gains or losses or sales of assets), (iii) any amount attributable
to depreciation and amortization expense and (iv) all other non-cash items
reducing Consolidated Net Income (excluding any non-cash charge to the extent
that it requires or represents an accrual of, or reserve for, cash charges in
any future period), less all non-cash items increasing Consolidated Net Income
(excluding any items which represent the reversal of an accrual of, or reserve
for, anticipated cash charges at any prior period), all as determined on a
consolidated basis for such Person and its Restricted Subsidiaries in accordance
with U.S. GAAP; provided, however, that there shall be excluded therefrom the
Consolidated Cash Flow (if positive) of any Restricted Subsidiary (calculated
separately for such Restricted Subsidiary in the same manner as provided above)
that is subject to a restriction which prevents the payment of dividends or the
making of distributions to the Company or another Restricted Subsidiary to the
extent of such restriction.
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"Consolidated Fixed Charges" means, with respect to any Person for any
period, Consolidated Interest Expense plus dividends declared and payable on
Preferred Stock.
"Consolidated Interest Expense" means, with respect to any Person for any
period, the aggregate amount of interest in respect of Indebtedness (including
capitalized interest, amortization of original issue discount on any
Indebtedness and the interest portion of any deferred payment obligation)
calculated in accordance with U.S. GAAP; all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing; the net costs associated with Interest Rate Agreements; and interest
on Indebtedness that is Guaranteed or secured by such Person or any of its
Restricted Subsidiaries, less the principal component of rentals in respect of
Capitalized Lease Obligations paid, accrued or scheduled to be paid or to be
accrued by such Person and its Restricted Subsidiaries during such period;
excluding, however, any amount of such interest of any Restricted Subsidiary to
the extent the net income of such Restricted Subsidiary is excluded in the
calculation of Consolidated Net Income pursuant to the last proviso of such
definition.
"Consolidated Net Income" means, for any period, the net income (or loss)
of the Company and its consolidated Restricted Subsidiaries determined in
accordance with U.S. GAAP; provided, however, that there will not be included in
such Consolidated Net Income: (i) any net income (loss) of any Person if such
Person is not a Restricted Subsidiary, except that (a) subject to the
limitations contained in clauses (iv), (v) and (vi) below, the Company's equity
in the net income of any such Person for such period will be included in such
Consolidated Net Income up to the aggregate amount of cash actually distributed
by such Person during such period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other
distribution to a Restricted Subsidiary, to the limitations contained in clause
(iii) below) and (b) the Company's equity in a net loss of any such Person
(other than an Unrestricted Subsidiary) for such period will be included in
determining such Consolidated Net Income to the extent such loss has been funded
with cash from the Company or a Restricted Subsidiary; (ii) any net income
(loss) of any Person acquired by the Company or a Subsidiary in a pooling of
interests transaction for any period prior to the date of such acquisition;
(iii) any net income (but not loss) of any Restricted Subsidiary if such
Subsidiary is subject to restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by such Restricted Subsidiary, directly
or indirectly, to the Company, except that (a) subject to the limitations
contained in clauses (iv), (v) and (vi) below, the Company's equity in the net
income of any such Restricted Subsidiary for such period will be included in
such Consolidated Net Income up to the aggregate amount of cash that could have
been distributed by such Restricted Subsidiary during such period to the Company
or another Restricted Subsidiary as a dividend (subject, in the case of a
dividend to another Restricted Subsidiary, to the limitation contained in this
clause) and (b) the Company's equity in a net loss of any such Restricted
Subsidiary for such period will be included in determining such Consolidated Net
Income; (iv) any gain (loss) realized upon the sale or other disposition of any
property, plant or equipment of the Company or its consolidated Restricted
Subsidiaries (including pursuant to any Sale/Leaseback Transaction) which is not
sold or otherwise disposed of in the ordinary course of business and any gain
(loss) realized upon the sale or other disposition of any Capital Stock of any
Person; (v) any extraordinary gain or loss; and (vi) the cumulative effect of a
change in accounting principles.
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"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the most recently available quarterly or
annual consolidated balance sheet of such Person and its Restricted Subsidiaries
(which shall be as of a date not more than 90 days prior to the date of
determination), less any amounts attributable to Redeemable Stock or any equity
security convertible into or exchangeable for Indebtedness, the cost of treasury
stock and the principal amount of any promissory notes receivable from the sale
of Equity Interests in the Company or any of its Restricted Subsidiaries, each
item to be determined in conformity with U.S. GAAP (excluding the effects of
foreign currency exchange adjustments under Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 52).
"Corporate Trust Office" means the address of the Trustee specified in
Section 11.2.
"Covenant Defeasance" shall have the meaning set forth in Section 8.3.
"Credit Facilities" means one or more senior credit agreements, senior
loan agreements or similar senior facilities with banks or other institutional
lenders providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables) or letters
of credit, in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.
"Cumulative Consolidated Cash Flow" means, for the period beginning on the
Issue Date through and including the end of the last fiscal quarter (taken as
one accounting period) preceding the date of any proposed Restricted Payment,
Consolidated Cash Flow of the Company and its Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with U.S. GAAP.
"Cumulative Consolidated Fixed Charges" means, for the period beginning on
the Issue Date through and including the end of the last fiscal quarter (taken
as one accounting period) preceding the date of any proposed Restricted Payment,
Consolidated Fixed Charges of the Company and its Restricted Subsidiaries for
such period determined on a consolidated basis in accordance with U.S. GAAP.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement and any other arrangement or agreement designed to provide protection
against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Default Interest Payment Date" shall have the meaning set forth in
Section 2.13.
7
"Definitive Notes" means Notes in definitive registered form substantially
in the form of Exhibits B and D.
"DTC" means The Depository Trust Company or its successors.
"DWAC" means the Depositary/Deposit Withdraw at Custodian system.
"Eligible Accounts Receivable" means the accounts receivables (net of any
reserves and allowances for doubtful accounts in accordance with U.S. GAAP) of
any Person that are not more than 60 days past their due date and that were
entered into in the ordinary course of business on normal payment terms as shown
on the most recent consolidated balance sheet of such Person filed with the
Commission, all in accordance with U.S. GAAP.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Morgan Guaranty Trust Company of New York (Brussels
office), as operator of the Euroclear System.
"Event of Default" shall have the meaning set forth in Section 6.1.
"Excess Proceeds" shall have the meaning set forth in Section 4.16.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute, and the rules and regulations thereunder.
"Exchange Notes" have the meaning provided in the preamble to this
Indenture.
"Exchange Offer" means an offer by the Company, pursuant to a Registration
Rights Agreement, to certain Holders of Initial Notes, to issue and deliver to
such Holders, in exchange for their Initial Notes, a like aggregate principal
amount of Exchange Notes registered under the Securities Act.
"Fair Market Value" means, with respect to any asset or property, the
price (after taking into account any liabilities relating to such assets) which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of which is under
any compulsion to complete the transaction; provided, however, that the Fair
Market Value of any such asset or assets shall be determined conclusively by the
Board of Directors acting in good faith, which determination shall be evidenced
by a resolution of such Board delivered to the Trustee.
"Global Note" shall mean the Rule 144A Global Note.
8
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which obligations
or guarantee the full faith and credit of the United States is pledged and are
not callable or redeemable at the option of the issuer thereof.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation in any
manner (including, without limitation, letters of credit and reimbursement
agreements in respect thereof) of any other Person; provided that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Holder" means a Person in whose name a Note is registered on the
Registrar's books.
"Incur" means, with respect to any Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness,
including an Incurrence of Indebtedness by reason of the acquisition of more
than 50% of the Equity Interests in any Person; provided that none of the
accrual of interest, the payment of interest in the form of additional
Indebtedness or the accretion of Original Issue Discount shall be considered an
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person,
whether or not contingent (A) in respect of borrowed money, (B) evidenced by
bonds, debentures, notes or other similar instruments or letters of credit or
other similar instruments (including reimbursement obligations with respect
thereto), (C) representing the balance deferred and unpaid of the purchase price
of property or services, which purchase price is due more than six months after
the date of placing such property in service or taking delivery and title
thereto or the completion of such services, except Trade Payables, (D)
representing Capitalized Lease Obligations, (ii) all Indebtedness of other
Persons secured by a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person; provided that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset at
such date of determination and (B) the amount of such Indebtedness, (iii) all
Indebtedness of other Persons Guaranteed by such Person to the extent such
Indebtedness is Guaranteed by such Person, (iv) the maximum fixed redemption or
repurchase price of Redeemable Stock of such Person at the time of determination
and (v) to the extent not otherwise included in this definition, obligations
under Currency Agreements and Interest Rate Agreements. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and, with respect to
contingent obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation; provided that (x) the amount
outstanding at any time of any Indebtedness issued with original issue discount
is the face amount of such Indebtedness less the remaining unamortized portion
of the original issue discount of such Indebtedness at such time as determined
in conformity with U.S. GAAP, (y) money borrowed and set aside at the time of
the Incurrence of any Indebtedness for the sole purpose of prefunding the
payment of interest on such Indebtedness (and which is pledged in favor of the
holders of such Indebtedness pending such application) shall not be deemed to be
"Indebtedness" so long as such money is held to secure the
9
payment of such interest and (z) Indebtedness shall not include any liability
for federal, state, local or other taxes.
"Indebtedness to Consolidated Cash Flow Ratio" shall have the meaning set
forth in Section 4.4.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time in accordance with the terms hereof.
"Initial Global Notes" means the Rule 144A Global Note.
"Initial Notes" shall have the meaning set forth in the preamble to this
Indenture.
"Initial Purchasers" means Lehman Brothers International (Europe) and
Morgan Stanley & Co. International Limited.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate insurance, and any other arrangement or
agreement designed to provide protection against fluctuations in interest rates.
"Investment" in any Person means, any direct or indirect advance, loan or
other extension of credit (including, without limitation, by way of Guarantee or
similar arrangement; but excluding advances to customers in the ordinary course
of business that are, in conformity with U.S. GAAP, recorded as accounts
receivable on the balance sheet of such Person or its Restricted Subsidiaries)
or capital contribution to (by means of any transfer of cash or other tangible
or intangible property to another Person or any payment for any property or
services for the account or use of another Person), or any purchase or
acquisition of Equity Interests, bonds, notes, debentures, or other similar
instruments issued by, any other Person. For purposes of the definition of
"Unrestricted Subsidiary" and Sections 4.3 and 4.19, (i) "Investment" shall
include (a) the Fair Market Value of the assets (net of liabilities) of any
Restricted Subsidiary of the Company at the time that such Restricted Subsidiary
of the Company is designated an Unrestricted Subsidiary and shall exclude the
Fair Market Value of the assets (net of liabilities) of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary of the Company and (b) the Fair Market Value, in the case
of a sale of Equity Interests in accordance with Section 4.19 such that a Person
no longer constitutes a Restricted Subsidiary, of the remaining assets (net of
liabilities) of such Person after such sale, and shall exclude the Fair Market
Value of the assets (net of liabilities) of any Unrestricted Subsidiary at the
time that such Unrestricted Subsidiary is designated a Restricted Subsidiary of
the Company and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of such
transfer.
"Issue Date" means the date on which the Notes are originally issued under
this Indenture.
10
"Legal Defeasance" shall have the meaning set forth in Section 8.2.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of Munich, Germany or The City of New York or a place
of payment are authorized or required by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
"Lien" means, any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind in respect of an asset, whether or not filed, recorded or
otherwise perfected under applicable law (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any sale with recourse against the seller or any Affiliate of the
seller, or any option or other agreement to sell or give any security interest).
"Liquidated Damages" shall have the meaning set forth in the Registration
Rights Agreement.
"Maturity Date" means July 1, 2009.
"Most Recent Balance Sheet" means, with respect to any Person, the most
recent consolidated balance sheet of such Person reported on by an
internationally recognized firm of independent accountants without qualification
as to scope.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or Cash Equivalents, including
payments in respect of deferred payment obligations (to the extent corresponding
to the principal, but not interest, component thereof) when received in the form
of cash or Cash Equivalents (except to the extent such obligations are financed
or sold with recourse to the Company or any Restricted Subsidiary of the
Company) and proceeds from the conversion of other property received when
converted to cash or Cash Equivalents, net of (i) brokerage commissions and
other fees and expenses (including fees and expenses of counsel and investment
bankers) related to such Asset Sale, (ii) taxes paid or payable as a result
thereof (after taking into account any available tax credits or deductions and
any tax sharing agreements), (iii) payments made to repay Indebtedness or any
other obligation outstanding at the time of such Asset Sale that either (A) is
secured by a Lien on the property or assets sold or (B) is required to be paid
as a result of such sale and (iv) appropriate amounts to be provided by the
Company or any Restricted Subsidiary of the Company as a reserve against any
liabilities associated with such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale, all as determined in conformity with U.S. GAAP;
provided that such amounts which cease to be held as reserves shall be deemed
Net Cash Proceeds; and (b) with respect to any issuance or sale of Equity
Interests (other than Redeemable Stock and excluding any Equity Interests issued
in connection with the Offering), the proceeds of such issuance or sale in the
form of cash or Cash Equivalents, including payments in respect of deferred
payment obligations (to the extent
11
corresponding to the principal, but not interest, component thereof) when
received in the form of cash or Cash Equivalents (except to the extent (1) such
obligations are financed, directly or indirectly, with money borrowed from the
Company or any Restricted Subsidiary or otherwise financed or sold with recourse
to the Company or any Restricted Subsidiary or (2) the purchase of the Equity
Interests is otherwise financed, directly or indirectly, by the Company or any
Restricted Subsidiary, including through funds contributed, extended, guaranteed
or otherwise advanced by the Company or any Affiliate) and proceeds from the
conversion of other property received when converted to cash or Cash
Equivalents, net of attorneys' fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees incurred in connection with such issuance or sale and net of taxes
paid or payable as a result thereof.
"Notes" shall have the meaning set forth in the preamble of this
Indenture.
"Offer Amount" shall have the meaning set forth in Section 4.16.
"Offer Period" shall have the meaning set forth in Section 4.16.
"Officer" means, with respect to any Person (other than any Agent), the
Chairman of the Board, any Director, the Chief Executive Officer, the President,
any Vice President, the Chief Financial Officer, the Treasurer, the Assistant
Treasurer, the Controller or the Secretary of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company that meets the requirements set
forth in Sections 11.4 and 11.5.
"Opinion of Counsel" means a written opinion from legal counsel which and
who are reasonably acceptable to, and addressed to, the Trustee complying with
the requirements of Sections 11.4 and 11.5. Unless otherwise required by the
TIA, the legal counsel may be an employee of or counsel to the Company.
"Original Notes" shall have the meaning set forth in the preamble to this
Indenture.
"Paying Agent" shall have the meaning set forth in Section 2.3.
"Permitted Assets" means, with respect to any Person, assets used in the
Permitted Business (or Equity Interests of a Person that becomes a Restricted
Subsidiary, the assets of which consist principally of such Permitted Assets)
that are purchased or acquired by the Company or a Restricted Subsidiary after
the Issue Date.
"Permitted Business" means the business of (i) operating an Internet
connectivity or internet enhancement service as it may exist from time to time,
including, without limitation, providing dial up or dedicated internet service,
web hosting or co-location services, security solutions, configuration services,
electronic commerce, intranet solutions, data backup and
12
restoral, business content and collaboration or consulting services with respect
to the foregoing (including without limitation, any business conducted by the
Company or any Restricted Subsidiary on the Issue Date), (ii) transmitting, or
providing services relating to the transmission of, voice, video or data through
owned or leased transmission facilities, (iii) constructing, creating,
developing, providing or marketing communications-related network equipment,
products, software and other devices for use in an Internet or
telecommunications business or (iv) evaluating, participating in or pursuing any
other activity or opportunity that is primarily related to those identified in
clause (i), (ii) or (iii) above. A good faith determination by a majority of the
Board of Directors as to whether a business meets the requirements of this
definition shall be conclusive, absent manifest error.
"Permitted Holder" means Andreas Eder, Alessandro Giacalone and any
Affiliate of the foregoing Persons.
"Permitted Investment" means (i) an Investment in a Restricted Subsidiary
or a Person which will, upon the making of such Investment, become a Restricted
Subsidiary or be merged or consolidated with or into or transfer or convey all
or substantially all its assets to, the Company or a Restricted Subsidiary; (ii)
payroll, travel and similar advances to cover matters that are expected at the
time of such advance ultimately to be treated as expenses in accordance with
U.S. GAAP; (iii) stock, obligations or securities received (a) in satisfaction
of judgments or (b) in settlement of debts, or as a result of foreclosure,
perfection or enforcement of any Lien, in each case under this clause (b)
arising in the ordinary course of business and not in contemplation of the
acquisition of such stock, obligations or securities; (iv) Investments in Cash
Equivalents; (v) Investments made as a result of the receipt of noncash
consideration from any Asset Sale made in compliance with Section 4.16; (vi)
Investments in negotiable instruments held for collection, lease, utility and
workers' compensation, performance and other similar pledges or deposits, and
other pledges or deposits permitted under Section 4.14; (vii) obligations under
Interest Rate Agreements or Currency Agreements; provided that such agreements
(a) are designed solely to protect the Company or the Restricted Subsidiary, as
the case may be, against fluctuations in foreign currency exchange rates or
interest rates and (b) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder; (viii) Investments made in the ordinary course
of business and on ordinary business terms in the Permitted Business in
consortia formed to construct transmission infrastructure for use primarily in
the Permitted Business, provided such Investment entitles the Company to rights
of way or rights of use on such transmission infrastructure; and (ix) any
Investment in Pledged Securities.
"Permitted Liens" means (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
U.S. GAAP shall have been made; (ii) statutory Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other similar
Liens arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate legal proceedings
promptly instituted and diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in conformity with U.S. GAAP
shall have been made; (iii) Liens incurred or
13
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security or other
similar legislation and other insurance-related obligations (including, without
limitation, pledges or deposits securing liability to insurance carriers under
insurance or self-insurance arrangements); (iv) easements, rights-of-way,
municipal and zoning ordinances and similar charges, encumbrances, title defects
or other irregularities that do not materially interfere with the ordinary
course of business of the Company or any of its Restricted Subsidiaries; (v)
Liens (including extensions and renewals thereof) upon real or personal property
of a Restricted Subsidiary purchased or leased after the Issue Date; provided
that (a) such Lien is created solely for the purpose of securing Indebtedness
Incurred by such Restricted Subsidiary in compliance with Section 4.4 and
Section 4.17 (1) to finance the cost of the item of property or assets subject
thereto and such Lien is created prior to, at the time of or within six months
after the later of the acquisition and the Incurrence of such Indebtedness or
(2) to refinance any Indebtedness of a Restricted Subsidiary previously so
secured, (b) the principal amount of the Indebtedness secured by such Lien does
not exceed 100% of such cost and (c) any such Lien shall not extend to or cover
any property or assets other than such item of property or assets; (vi) any
interest or title of a lessor in the property subject to any Capitalized Lease
or operating lease of a Restricted Subsidiary which, in each case, is permitted
under this Indenture; (vii) Liens on property of, or on Equity Interests in or
Indebtedness of, any Person existing at the time such Person becomes, or becomes
a part of, any Restricted Subsidiary; provided that such Liens were not created,
incurred or assumed in contemplation of such transaction and do not extend to or
cover any property or assets of the Company or any Restricted Subsidiary other
than the property or assets so acquired; (viii) Liens arising from the rendering
of a final judgment or order against the Company or any Restricted Subsidiary of
the Company that does not give rise to an Event of Default; (ix) Liens
encumbering customary initial deposits and margin deposits and other Liens that
are either within the general parameters customary in the industry or incurred
in the ordinary course of business, in each case, securing Indebtedness under
Interest Rate Agreements and Currency Agreements; (x) Liens arising out of
conditional sale, title retention, consignment or similar arrangements for the
sale of goods entered into by the Company or any of its Restricted Subsidiaries
in the ordinary course of business in accordance with the past practices of the
Company and its Restricted Subsidiaries prior to the Issue Date; (xi) Liens
existing on the Issue Date or securing the Notes or any Guarantee of the Notes;
(xii) Liens granted after the Issue Date on any assets or Equity Interests in
the Company or its Restricted Subsidiaries created in favor of the holders;
(xiii) Liens with respect to the assets of a Restricted Subsidiary granted by
such Restricted Subsidiary to the Company or another Restricted Subsidiary to
secure Indebtedness owing to the Company or such Restricted Subsidiary and
Incurred in compliance with clause (ii) of paragraph (b) of Section 4.4; (xiv)
Liens created in connection with the incurrence of any Indebtedness permitted to
be Incurred under clause (iii) of paragraph (b) of Section 4.4; provided that
the Indebtedness which it refinances is secured by similar Liens; (xv) Liens
securing Indebtedness under Credit Facilities incurred in compliance with clause
(viii) of paragraph (b) of Section 4.4; (xvi) Liens incurred or deposits made to
secure the performance of tenders, bids, leases, subleases, licenses,
sublicenses, obligations for utilities, statutory or regulatory obligations,
bankers' acceptances, letters of credit, surety and appeal bonds, government or
other contracts, completion guarantees, performance and return-of-money bonds
and other obligations of a similar nature incurred in the ordinary course of
business (exclusive of obligations for the payment of borrowed money); (xvii)
Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties
14
in connection with the importation of goods; (xviii) Liens created to secure
Attributable Debt in connection with Sale/Leaseback Transactions permitted to be
entered into under Section 4.22; and (xix) Liens with respect to the Collateral
Account (or any similar collateral account established in connection with the
issuance of any Additional Notes or any other notes which are pari passu with
the Notes) arising under the Collateral Agreement (or any similar collateral
agreement established in connection with the issuance of any Additional Notes or
any other notes which are pari passu with the Notes).
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Pledged Securities" means the Government Securities purchased by the
Company and deposited in the Collateral Account.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) which is preferred as to the payment of dividends or
distributions, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over Equity Interests of
any other class in such Person.
"Private Placement Legend" means the legend set forth in Section 2.7(c).
"Pro Forma Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Cash Flow of such Person for such period calculated
on a pro forma basis to give effect to any Asset Sale or Asset Acquisition
(including acquisitions of other Persons by merger, consolidation or purchase of
Equity Interests) during such period as if such Asset Sale or Asset Acquisition
had taken place on the first day of such period and income (or losses) ceased to
accrue or accrued, as the case may be, therefrom from such date.
"Purchase Agreement" means (i) the Purchase Agreement dated July 8, 1999,
among the Company, Parent and the Initial Purchasers and (ii) any other similar
purchase agreement relating to Additional Notes.
"Purchase Date" shall have the meaning set forth in Section 4.16.
"Qualified Institutional Buyer" or "QIB" shall have the meaning specified
in Rule 144A under the Securities Act.
"Record Date" means the Record Dates specified in the Notes.
"Redeemable Stock" means, with respect to any Person, any Capital Stock
which by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or upon the happening of any event (i) matures
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise,
(ii) is convertible or exchangeable for Indebtedness or Redeemable Stock or
(iii) is redeemable or must be purchased, upon the occurrence of certain
15
events or otherwise, by such Person at the option of the holder thereof, in
whole or in part, in each case on or prior to the first anniversary of the
Stated Maturity of the Notes; provided, however, that any Capital Stock that
would not constitute Redeemable Stock but for provisions thereof giving holders
thereof the right to require such Person to purchase or redeem such Capital
Stock upon the occurrence of an "asset sale" or "change of control" occurring
prior to the first anniversary of the Stated Maturity of the Notes shall not
constitute Redeemable Stock if (x) the "asset sale" or "change of control"
provisions applicable to such Capital Stock are not more favorable to the
holders of such Capital Stock than the terms applicable to the Notes and
described under Section 4.15 and Section 4.16 and (y) any such requirement only
becomes operative after compliance with such terms applicable to the Notes
including the purchase of any Notes tendered pursuant thereto.
"Redemption Date" when used with respect to any Note to be redeemed, means
the date fixed for such redemption pursuant to this Indenture and Paragraphs 8
and 9 of the Initial Notes and Paragraphs 7 and 8 of the Exchange Notes.
"Redemption Price" when used with respect to any Note to be redeemed,
means the price fixed for such redemption pursuant to this Indenture and
Paragraphs 8 and 9 of the Initial Notes and Paragraphs 7 and 8 of the Exchange
Notes.
"Registrar" shall have the meaning set forth in Section 2.3.
"Registration Rights Agreement" means (i) the Registration Rights
Agreement among the Company and the Initial Purchasers, relating to the Original
Notes and dated as of July 8, 1999, as the same may be amended, supplemented or
modified from time to time in accordance with the terms thereof and (ii) any
similar registration rights agreement relating to Additional Notes, as the same
may be amended, supplemented or modified from time to time in accordance with
the terms thereof.
"Relevant Taxing Jurisdiction" shall have the meaning set forth in Section
4.20.
"Replacement Assets" means any property, plant or equipment of a nature or
type that are used or usable in the Permitted Business (as determined in good
faith by the Board of Directors, whose determination shall be evidenced by a
Board Resolution).
"Restricted Subsidiary" means, at any time, any direct or indirect
Subsidiary of the Company that is then not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 (including any successor regulation thereto)
under the Securities Act, as it may be amended from time to time.
"Rule 144A" means Rule 144A (including any successor regulation thereto)
under the Securities Act, as it may be amended from time to time.
"Rule 144A Global Note" shall have the meaning set forth in Section 2.1.
16
"Rule 144A Notes" shall have the meaning set forth in Section 2.1.
"S&P" means Standard and Poor's Ratings Services, a division of the
McGraw-Hill Companies, and its successors.
"Sale/Leaseback Transaction" is defined to mean an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Restricted
Subsidiary transfers such property to a Person and the Company or a Restricted
Subsidiary leases it from such Person, other than leases between the Company and
a Wholly Owned Restricted Subsidiary or between Wholly Owned Restricted
Subsidiaries.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute, and the rules and regulations thereunder.
"Share Capital" means, at any time of determination, the stated capital of
the Equity Interests (other than Redeemable Stock) and additional paid-in
capital of the Company as set forth on the Most Recent Balance Sheet of the
Company at such time.
"Significant Subsidiary" means, at any time of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Company, accounted for more than 10% of the
consolidated revenues of the Company and its Restricted Subsidiaries or (ii) as
of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Company for such fiscal year.
"Stated Maturity" means, (i) with respect to any debt security, the date
specified in such debt security as the fixed date on which the final installment
of principal of such debt security is due and payable and (ii) with respect to
any scheduled installment of principal of or interest on any debt security, the
date specified in such debt security as the fixed date on which such installment
is due and payable.
"Subsidiary" means, with respect to any Person (i) any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is at the time of determination owned, directly or indirectly, by
such Person or one or more other Subsidiaries of such Person and (ii) any
partnership, joint venture, limited liability company or similar entity of which
(A) more than 50% of the capital accounts, distribution rights, total equity and
voting interests or general or limited partnership interests, as applicable, are
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of that Person or a combination thereof whether in the
form of membership, general, special or limited partnership or otherwise and (B)
such Person or any Restricted Subsidiary of such Person is a controlling general
partner, co-venturer or manager or is in a similar position or otherwise
controls such entity.
"Successor Company" shall have the meaning set forth in Section 5.1.
"Taxes" shall have the meaning set forth in Section 4.20.
17
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-
77bbbb), as it may be amended from time to time.
"Trade Payables" means any accounts payable or any other indebtedness or
monetary obligation to trade creditors created, assumed or Guaranteed by the
Company or any of its Restricted Subsidiaries arising in the ordinary course of
business in connection with the acquisition of goods and services.
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"Trust Officer" means any officer within the corporate trust department
(or any successor group of the Trustee), including any vice president, assistant
vice president, corporate trust officer, assistant corporate trust officer,
assistant secretary or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at that time shall be such officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such trust matter
is referred because of his or her knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unit Agent" means the Unit Agent under the Unit Agreement.
"Unit Agreement" means (i) the Unit Agreement, dated the date hereof,
relating to the offering of 150,000 Units, each consisting of $1,000 principal
amount of the Company's 14.0% Senior Notes due 2009 and one Warrant to purchase
30.2310693 shares of Common Stock of the Company, among the Company and The Bank
of New York, as Unit Agent, Trustee and Warrant Agent thereunder.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company which at
the time of determination is an Unrestricted Subsidiary (as designated by the
Board of Directors in the manner provided below) and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary, or any of its
Subsidiaries, owns any Equity Interests or Indebtedness of, or owns or holds any
Lien on any property of, the Company or any Restricted Subsidiary; provided that
(a) the Company certifies in an Officers' Certificate that such designation
complies with the covenants described under Section 4.3, (b) such Subsidiary is
not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Company or such Restricted Subsidiary than those that might reasonably be
obtained in a comparable arm's-length transaction at the time from Persons who
are not Affiliates of the Company, (c) neither the Company nor any of its
Restricted Subsidiaries has any direct or
18
indirect obligation (1) to subscribe for additional Equity Interests in such
Subsidiary or any Subsidiary of such Subsidiary or (2) to maintain or preserve
such Subsidiary's financial condition or to cause such Subsidiary to achieve any
specified levels of operating results and (d) such Subsidiary and its
Subsidiaries have not at the time of designation, and do not thereafter, Incur
any Indebtedness other than Unrestricted Subsidiary Indebtedness. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary of the Company; provided that immediately after giving effect to such
designation (x) the Company could Incur C1.00 of additional Indebtedness under
Section 4.4(a) on a pro forma basis taking into account such designation and (y)
no Default or Event of Default shall have occurred and be continuing. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"Unrestricted Subsidiary Indebtedness" means Indebtedness of any
Unrestricted Subsidiary (i) as to which neither the Company nor any Restricted
Subsidiary is directly or indirectly liable (by virtue of the Company or any
such Restricted Subsidiary being the primary obligor on, guarantor of, or
otherwise liable in any respect to, such Indebtedness), and (ii) which, upon the
occurrence of a default with respect thereto, does not result in, or permit any
holder of any Indebtedness of the Company or any Restricted Subsidiary to
declare, a default on such Indebtedness of the Company or any Restricted
Subsidiary or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"U.S. GAAP" means, at any date of determination, generally accepted
accounting principles as in effect in the United States of America which are
applicable at the date of determination and which are consistently applied for
all applicable periods.
"U.S. Person" means a "U.S. person" as defined in Rule 902 under the
Securities Act or any successor to such Rule.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily entitled to vote for the election of directors thereof
at a meeting of Stockholders called for such purpose, without the occurrence of
any additional event or contingency.
"Warrant Agreement" means the Warrant Agreement, dated the date hereof,
between the Company and The Bank of New York, as Warrant Agent.
"Warrants" means warrants issued under the Warrant Agreement.
"Weighted Average Life to Maturity" means, at any date of determination
with respect to any Indebtedness, the quotient obtained by dividing (i) (a) the
sum of the products of the number of years from such date of determination to
the dates of each successive scheduled principal payment of, or redemption or
similar payment with respect to, such Indebtedness multiplied by (b) the amount
of such principal payment, by (ii) the sum of all such principal payments.
19
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary all
of the outstanding voting Equity Interests (other than directors' qualifying
shares) of which are owned, directly or indirectly, by the Company.
SECTION 1.2 Incorporation by Reference of TIA. This Indenture is
----------------------------------
subject to the mandatory provisions of the TIA which as of the date hereof and
thereafter as in effect are incorporated by reference in, and made a part of,
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.3 Rules of Construction. Unless the context otherwise
----------------------
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with U.S. GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and words in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE II
THE NOTES
---------
SECTION 2.1 Form and Dating. The Initial Notes and the notation
----------------
relating to the Trustee's certificate of authentication thereof, shall be
substantially in the form of Exhibits A or
20
B, as applicable. The Exchange Notes, and the notation relating to the Trustee's
certificate of authentication thereof, shall be substantially in the form of
Exhibits C or D, as applicable. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company and the
Trustee shall approve the form of the Notes and any notation, legend or
endorsement on them. Each Note shall be dated the date of its issuance and shall
show the date of its authentication.
The terms and provisions contained in the Notes, annexed hereto as
Exhibits A, B, C, D shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. The Notes will initially be represented
by the Initial Global Notes.
Notes offered and sold in their initial distribution in reliance on Rule
144A shall be initially issued as one or more global notes in registered, global
form without interest coupons, substantially in the form of Exhibit A hereto,
with such applicable legends as are provided in Exhibit A, except as otherwise
permitted herein. Such Initial Global Notes shall be referred to collectively
herein as the "Rule 144A Global Note." Such Rule 144A Global Notes shall be
---------------------
deposited on behalf of the holders of the Notes represented thereby by the
Trustee, at its New York office, as custodian for DTC, duly executed by the
Company and authenticated by the Trustee or an Authenticating Agent as provided
herein; provided until such time as the Notes Separate from the Warrants, the
Rule 144A Global Note shall be represented by a Global Unit deposited with the
Unit Agent as custodian for and registered in the name of DTC or its nominee.
The aggregate principal amount of the Rule 144A Global Note may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for DTC, or the records of DTC or its nominee, as the case
may be, as hereinafter provided (or by the issue of a further Rule 144A Global
Note) in consequence of the issue of Definitive Notes or additional Rule 144A
Notes, as hereinafter provided. The Rule 144A Global Note and all other Initial
Notes, if any, evidencing the debt, or any portion of the debt, initially
evidenced by such Rule 144A Global Note, shall collectively be referred to
herein as the "Rule 144A Notes."
---------------
SECTION 2.2 Execution and Authentication. Two Officers shall sign, or
-----------------------------
one Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note was an Officer at the time of
such execution but no longer holds that office or position at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
Except as otherwise provided herein, the aggregate principal amount of
Notes which may be outstanding at any time under this Indenture is $350,000,000.
The Trustee shall
21
authenticate an aggregate principal amount of Notes not to exceed $350 million
for issuance, which shall consist of (i) Original Notes for original issue on
the Closing Date in the aggregate principal amount not to exceed $150,000,000,
(ii) Additional Notes from time to time for issue in an aggregate principal
amount not to exceed $200,000,000, which may be issued by the Company after the
Closing Date, and (iii) Exchange Notes from time to time for issue in the
aggregate principal amount not to exceed $350,000,000 for issuance in exchange
for a like principal amount of Initial Notes pursuant to an exchange offer
registration statement under the Securities Act or pursuant to a Private
Exchange (as defined in the Registration Rights Agreement dated the date
hereof), in each case upon receipt of a Company Order in the form of an
Officers' Certificate. Exchange Notes may have such distinctive series
designation, and such changes in the form thereof, as are specified in the
written order referred to in the preceding sentence. Additional Notes will be
treated as the same series of Notes as the Original Notes for all purposes under
this Indenture, including, without limitation, for purposes of waivers,
amendments, redemptions and offers to purchase. The Officers' Certificate shall
specify the aggregate principal amount of Notes to be authenticated, the series
and type of Notes, the date on which the Notes are to be authenticated, the
issue price, whether the Notes are to be Original Notes, Additional Notes or
Exchange Notes, whether the Notes are to be issued as Definitive Notes or Global
Notes and whether or not the Notes shall bear the Private Placement Legend, or
such other information as the Trustee may reasonably request. In authenticating
the Notes and accepting the responsibilities under this Indenture in relation to
the Notes the Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the form and terms thereof
have been established in conformity with the provisions of this Indenture. Upon
receipt of a Company Order, the Trustee shall authenticate Notes in substitution
of Notes originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent ("Authenticating Agent")
--------------------
reasonably acceptable to the Company to authenticate Notes. Unless otherwise
provided in the appointment, an Authenticating Agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent. An Authenticating Agent has the same rights as an Agent to deal with the
Company and Affiliates of the Company.
The Notes shall be issuable only in denominations of $1,000 and any
integral multiple thereof.
SECTION 2.3 Registrar and Paying Agent. The Company shall maintain an
---------------------------
office or agency in the Borough of Manhattan, The City of New York and, if and
so long as the Notes are listed on the Luxembourg Stock Exchange and the rules
of such stock exchange so require, in Luxembourg, where (i) Global Notes may be
presented or surrendered for registration of transfer or for exchange
("Registrar"), (ii) Global Notes may be presented or surrendered for payment
- -----------
("Paying Agent") and (iii) notices and demands in respect of such Global Notes
- --------------
and this Indenture may be served. In the event that Definitive Notes are issued,
(x) Definitive Notes may be presented or surrendered for registration of
transfer or for exchange, (y) Definitive Notes may be presented or surrendered
for payment and (z) notices and demands in respect of the Definitive Notes and
this Indenture may be served at an office of the Registrar or the Paying Agent,
as applicable, in the Borough of Manhattan, The City of New York. The Registrar
shall keep a
22
register of the Notes and of their transfer and exchange. The Company, upon
notice to the Trustee, may have one or more co-Registrars and one or more
additional Paying Agents. The term "Registrar" includes any co-Registrar and the
term "Paying Agent" includes any additional Paying Agent. The Company initially
appoints The Bank of New York as Registrar and Paying Agent until such time as
The Bank of New York has resigned or a successor has been appointed. The Company
may change any Registrar or Paying Agent without notice to any Holder. Payment
of principal will be made upon the surrender of Definitive Notes at the office
of the Paying Agent, including, if any, the Paying Agent in Luxembourg. In the
case of a transfer of a Definitive Note in part, upon surrender of the
Definitive Note to be transferred, a Definitive Note shall be issued to the
transferee in respect of the principal amount transferred and a Definitive Note
shall be issued to the transferor in respect of the balance of the principal
amount of the transferred Definitive Note at the office of any transfer agent,
including, if any, the transfer agent in Luxembourg.
If the notes are listed on the Luxembourg Stock Exchange, the Company will
appoint Kredietbank S.A. Luxembourgeoise, or such other Person located in
Luxembourg, as an additional paying and transfer agent. Upon the issuance of
Definitive Notes, Holders will be able to receive principal and interest on the
Notes and will be able to transfer Definitive Notes at the Luxembourg office of
such paying and transfer agent, subject to the right of the Company to mail
payments in accordance with the terms of this Indenture.
SECTION 2.4 Paying Agent To Hold Assets in Trust. The Company shall
-------------------------------------
require each Paying Agent other than the Trustee to agree in writing that each
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
assets held by the Paying Agent for the payment of principal of, Additional
Amounts, if any, Liquidated Damages, if any, premium, if any, or interest on,
the Notes, and shall notify the Trustee of any Default by the Company in making
any such payment. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent shall have no
further liability for such assets.
SECTION 2.5 List of Holders. The Trustee shall preserve in as current a
----------------
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee before each Record Date and at such other
times as the Trustee may request in writing a list as of such date and in such
form as the Trustee may reasonably require of the names and addresses of
Holders, which list may be conclusively relied upon by the Trustee.
SECTION 2.6 Book-Entry Provisions for Global Notes. (a) The Global
--------------------------------------
Notes initially shall (i) be registered in the name of DTC or the nominee of
such depositary, (ii) be delivered to the Trustee as custodian for such
depositary and (iii) bear legends as set forth in Section 2.7(c) hereto.
23
(b) Restrictions on Transfer and Exchange of Global Notes.
-----------------------------------------------------
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another successor of DTC or a nominee of such successor depositary.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Definitive Notes in accordance with the rules and procedures of
DTC and the provisions of Section 2.7. All Global Notes shall be exchanged by
the Company (with authentication by the Trustee) for one or more Definitive
Notes, if (a) any of DTC, Euroclear and Cedel (i) has notified the Company that
it is unwilling or unable to continue as a clearing agency, or (in the case of
DTC) ceases to be a clearing agency registered under the Exchange Act and (ii) a
successor to DTC, Euroclear or Cedel, as the case may be, that (in the case of
DTC) is registered as a clearing agency under the Exchange Act, is not able to
be appointed by the Company within 90 days of such notification or (b) at any
time at the option of the Company. If an Event of Default occurs and is
continuing, the Company shall, at the request of the Holder thereof, exchange
all or part of a Global Note for one or more Definitive Notes (with
authentication by the Trustee); provided, however, that the principal amount at
maturity of such Definitive Notes and such Global Note after such exchange shall
be $1,000 or integral multiples thereof. Whenever all of a Global Note is
exchanged for one or more Definitive Notes, it shall be surrendered by the
Holder thereof to the Trustee for cancellation. Whenever a part of a Global Note
is exchanged for one or more Definitive Notes the Global Note shall be
surrendered by the Holder thereof to the Trustee who shall cause an adjustment
to be made to Schedule A of such Global Note such that the principal amount of
such Global Note will be equal to the portion of such Global Note not exchanged
and shall thereafter return such Global Note to such Holder. A Global Note may
not be exchanged for a Definitive Note other than as provided in this Section
2.6(b).
(c) In connection with the transfer of Global Notes as an entirety to
beneficial owners pursuant to paragraph (b) of this Section 2.6, the Global
Notes shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall upon written instructions from the
Company authenticate and make available for delivery, to each beneficial owner
in exchange for its beneficial interest in the Global Notes, an equal aggregate
principal amount of Definitive Notes of authorized denominations.
(d) Any Definitive Note constituting a Rule 144A Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b) of this
Section 2.6 shall, except as otherwise provided by Section 2.8, bear the Private
Placement Legend.
SECTION 2.7 Registration of Transfer and Exchange. (a) Notwithstanding
-------------------------------------
any provision to the contrary herein, so long as a Note remains outstanding,
transfers of beneficial interests in Global Notes or transfers of Definitive
Notes, in whole or in part, shall be made only in accordance with this Section
2.7.
(b) Other Exchanges. In the event that a Global Note is exchanged for
---------------
Definitive Notes in registered form without interest coupons, pursuant to
Section 2.6(b), or a Definitive Note is exchanged for a beneficial interest in a
Global Note, such Notes may be exchanged or transferred for one another only in
accordance with such procedures as are substantially
24
consistent with the provisions of Sections 2.6 and 2.7 herein and as may be from
time to time adopted by the Company and the Trustee.
(c) Private Placement Legend. Each Note issued hereunder shall, upon
------------------------
issuance, bear the legend set forth herein and such legend shall not be removed
from such Note except as provided in the next sentence. The legend required for
a Rule 144A Note may be removed from a Rule 144A Note if there is delivered to
the Company and the Trustee such satisfactory evidence, which may include an
opinion of independent counsel licensed to practice law in the State of New
York, as may be reasonably required by the Company and the Trustee, that neither
such legend nor the restrictions on transfer set forth therein are required to
ensure that transfers of such Note will not violate the registration
requirements of the Securities Act. Upon provision of such satisfactory
evidence, the Trustee, at the direction of the Company, shall authenticate and
deliver in exchange for such Note another Note or Notes having an equal
aggregate principal amount that does not bear such legend. If such a legend
required for a Rule 144A Note has been removed from a Rule 144A Note as provided
above, no other Note issued in exchange for all or any part of such Note shall
bear such legend, unless the Company has reasonable cause to believe that such
other Note is a "restricted security" within the meaning of Rule 144 and
instructs the Trustee to cause a legend to appear thereon.
The Initial Notes shall bear the following legend (the "Private Placement
-----------------
Legend") on the face thereof:
- ------
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
--------------
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT),
(2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR
SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR
THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE
------
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
----------------------------
SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT
25
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (D) WITH THE
CONSENT OF THE COMPANY, PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHICH THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT, IN CONSENTING TO
ANY SALE OR OFFER PURSUANT TO CLAUSE (D) ABOVE, THE COMPANY SHALL HAVE THE
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE, THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED AS PART
OF THEIR INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER, DIRECTLY OR
INDIRECTLY, OTHER THAN TO (INVESTMENT) BANKS, PENSION FUNDS, INSURANCE
COMPANIES, SECURITIES FIRMS, INVESTMENT INSTITUTIONS, CENTRAL GOVERNMENTS,
LARGE INTERNATIONAL AND SUPRA-NATIONAL ORGANIZATIONS AND OTHER COMPARABLE
ENTITIES, INCLUDING, AMONG OTHERS, TREASURIES AND FINANCE COMPANIES OF
LARGE ENTERPRISES, WHICH ARE ACTIVE ON A REGULAR AND PROFESSIONAL BASIS IN
THE FINANCIAL MARKETS FOR THEIR OWN ACCOUNT.
After Separation (as defined in the Unit Agreement), the Global Notes
shall also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
---
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF DTC
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY
26
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.6 OF THE INDENTURE DATED JULY 8, 1999 PURSUANT TO WHICH
THEY WERE ISSUED.
(d) General. By its acceptance of any Note bearing the Private Placement
-------
Legend, each Holder of such a Note acknowledges the restrictions on transfer of
such Note set forth in this Indenture and in the Private Placement Legend and
agrees that it will transfer such Note only as provided in this Indenture.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Agent Members or
beneficial owners of interest in any Global Note) other than to require delivery
of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.
Each Holder of a Security agrees to indemnify the Company and the Trustee
against any liability that may result from the transfer, exchange or assignment
of such Holder's Security in violation of any provision of this Indenture and/or
applicable United States Federal or state securities law.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.6 or this Section 2.7.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
(e) Any Initial Notes which are presented to the Registrar for exchange
pursuant to the Exchange Offer shall be exchanged for Exchange Notes of equal
principal amount upon surrender to the Registrar or an exchange agent of the
Initial Notes to be exchanged; provided, however, that the Initial Notes so
surrendered for exchange shall be duly endorsed and accompanied by a letter of
transmittal or written instrument of transfer in form satisfactory to the
Company, the Trustee and the Registrar or an exchange agent duly executed by the
Holder thereof or his attorney who shall be duly authorized in writing to
execute such document. Whenever any Initial Notes are so surrendered for
exchange, the Company shall execute, and upon receipt of the Company Order
provided for in Section 2.2, the Trustee shall authenticate and deliver to the
Holder the same aggregate principal amount of Exchange Notes as those Initial
Notes that have been surrendered.
27
(f) Definitive Notes shall be transferable only upon the surrender of a
Definitive Note for registration of transfer. When a Definitive Note is
presented to the Registrar or a co-registrar with a request to register a
transfer, the Registrar shall register the transfer as requested if its
requirements for such transfers are met. When Definitive Notes are presented to
the Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Definitive Notes of other denominations, the Registrar shall
make the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Definitive Notes at the Registrar's or co-registrar's
request.
(g) The Company shall not be required to make, and the Registrar need not
register transfers or exchanges of, Definitive Notes selected for redemption
(except, in the case of Definitive Notes to be redeemed in part, the portion
thereof not to be redeemed) or any Definitive Notes for a period of 15 days
before a selection of Definitive Notes to be redeemed.
(h) Prior to the due presentation for registration of transfer of any
Note, the Company, the Trustee, the Paying Agent, the Registrar or any co-
registrar may deem and treat the Person in whose name a Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal, interest, Additional Amounts, if any, or Liquidated Damages, if any,
on such Note and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Company, the Trustee, the Paying Agent, the Registrar
or any co-registrar shall be affected by notice to the contrary.
(i) The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section 2.7 (other than in respect of an Exchange
Offer, except as otherwise provided in a Registration Rights Agreement).
(j) All Notes issued upon any transfer or exchange pursuant to the terms
of this Indenture will evidence the same debt and will be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
(k) Holders of Initial Notes (or holders of interests therein) and
prospective purchasers designated by such Holders (or holders of interests
therein) will have the right to obtain from the Company upon request by such
Holders (or holders of interests therein) or prospective purchasers, during any
period in which the Company is not subject to Section 13 or 15(d) of the
Exchange Act, or is exempt from reporting pursuant to 12g3-2(b) under the
Exchange Act, the information required by paragraph d(4)(i) of Rule 144A in
connection with any transfer or proposed transfer of such Notes.
SECTION 2.8 Replacement Notes. If a mutilated Definitive Note is
-----------------
surrendered to the Registrar, if a mutilated Global Note is surrendered to the
Company or if the Holder of a Note claims that such Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note in such form as the Note being replaced if the
requirements of the Trustee, the Registrar and the Company are met. If required
by the Trustee, the Registrar or the Company, such Holder must provide an
indemnity bond or other
28
indemnity, sufficient in the judgment of the Company, the Registrar and the
Trustee, to protect the Company, the Registrar, the Trustee and any Agent from
any loss which any of them may suffer if a Note is replaced. The Company, the
Trustee and Registrar, may charge such Holder for its reasonable, out-of-pocket
expenses in replacing a Note, including reasonable fees and expenses of counsel.
Every replacement Note is an additional obligation of the Company.
SECTION 2.9 Outstanding Notes. Notes outstanding at any time are all
-----------------
the Notes that have been authenticated by the Trustee except those canceled by
it, those delivered to it for cancellation, those reductions in the Global Note
effected in accordance with the provisions hereof and those described in this
Section as not outstanding. Subject to Section 2.10, a Note does not cease to
be outstanding because the Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.8 (other than a mutilated Note
surrendered for replacement), it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Note is held by a bona fide
---- ----
purchaser. A mutilated Note ceases to be outstanding upon surrender of such
Note and replacement thereof pursuant to Section 2.8.
If the principal amount of any Note is considered paid under Section 4.1
hereof, it ceases to be outstanding and interest, Additional Amounts, if any and
Liquidated Damages, if any, on it cease to accrue.
If on a Redemption Date or the Maturity Date the Paying Agent holds cash
in U.S. dollars or Government Securities sufficient to pay all of the principal
and interest due on the Notes payable on that date, then on and after that date
such Notes cease to be outstanding and interest, Additional Amounts, if any, and
Liquidated Damages, if any, on such Notes cease to accrue.
SECTION 2.10 Treasury Notes. In determining whether the Holders of the
--------------
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company or its Affiliates shall be disregarded,
except that, for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes that a
Trust Officer of the Trustee actually knows are so owned shall be disregarded.
The Company shall notify the Trustee, in writing, when it or any of its
Affiliates repurchases or otherwise acquires Notes of the aggregate principal
amount of such Notes so repurchased or otherwise acquired. The Trustee may
require an Officers' Certificate listing Notes owned by the Company, a
Subsidiary of the Company or an Affiliate of the Company.
SECTION 2.11 Temporary Notes. Until permanent Definitive Notes are ready
---------------
for delivery, the Company may prepare and the Trustee shall authenticate
temporary Definitive Notes upon receipt of a Company Order in the form of an
Officers' Certificate. The Officers' Certificate shall specify the amount of
temporary Definitive Notes to be authenticated and the date on which the
temporary Definitive Notes are to be authenticated. Temporary Definitive Notes
shall be substantially in the form of permanent Definitive Notes but may have
variations that the Company considers appropriate for temporary Definitive
Notes. Without unreasonable
29
delay, the Company shall prepare and the Trustee shall authenticate upon receipt
of a Company Order pursuant to Section 2.2 permanent Definitive Notes in
exchange for temporary Definitive Notes.
SECTION 2.12 Cancellation. The Company at any time may deliver Notes to
------------
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel and, at the written direction of the
Company, shall dispose of (subject to the record retention requirements of the
Exchange Act) all Notes surrendered for transfer, exchange, payment or
cancellation; provided, however, that the Trustee may, but shall not be required
to, destroy such canceled Notes. Subject to Section 2.7, the Company may not
issue new Notes to replace Notes that it has paid or delivered to the Trustee
for cancellation. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are surrendered
to the Trustee for cancellation pursuant to this Section 2.12.
SECTION 2.13 Defaulted Interest. If the Company defaults in a payment of
------------------
interest on the Notes, it shall pay the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest, to the Holder thereof on
a subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest.
The Company shall notify the Trustee and Paying Agent in writing of the amount
of defaulted interest proposed to be paid on each Note and the date of the
proposed payment (a "Default Interest Payment Date"), and at the same time the
-----------------------------
Company shall deposit with the Trustee or Paying Agent an amount of money equal
to the aggregate amount proposed to be paid in respect of such defaulted
interest or shall make arrangements satisfactory to the Trustee or Paying Agent
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
defaulted interest as in this Section 2.13; provided, however, that in no event
shall the Company deposit monies proposed to be paid in respect of defaulted
interest later than 10:00 a.m. New York City time on the proposed Default
Interest Payment Date with respect to defaulted interest to be paid on the Note.
At least 15 days before the subsequent special record date, the Company shall
mail to each Holder, with a copy to the Trustee, a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
SECTION 2.14 CUSIP, ISIN and Common Code Numbers. The Company in issuing
-----------------------------------
the Notes may use a "CUSIP", "ISIN" or "Common Code" number, and if so, the
Trustee shall use the CUSIP, ISIN and Common Code number in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP, ISIN and Common Code number printed in the notice or on
the Notes, and that reliance may be placed only on the other identification
numbers printed on the Notes. The Company shall promptly notify the Trustee of
any change in any CUSIP, ISIN or Common Code number.
30
SECTION 2.15 Deposit of Moneys. Prior to 10:00 a.m. New York City time
-----------------
on each Interest Payment Date and Maturity Date, the Company shall have
deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments, if any, due on such Interest Payment Date or Maturity
Date, as the case may be, on all Notes then outstanding. Such payments shall be
made by the Company in a timely manner which permits the Paying Agent to remit
payment to the Holders on such Interest Payment Date or Maturity Date, as the
case may be.
SECTION 2.16 Certain Matters Relating to Global Notes. (a) Members of,
----------------------------------------
or participants in, DTC ("Agent Members") shall have no rights under this
-------------
Indenture with respect to any Global Note held on their behalf by DTC or the
Trustee as its custodian, or under the Global Note, and DTC may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by DTC or impair, as
between DTC and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) The Holder of any Global Note may grant proxies and otherwise
authorize any person, including DTC and its Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
ARTICLE III
REDEMPTION
----------
SECTION 3.1 Optional Redemption. The Company may redeem all or any
-------------------
portion of the Notes, upon the terms and at the redemption prices set forth in
each of the Notes. Any redemption pursuant to this Section 3.1 shall be made
pursuant to the provisions of this Article III.
SECTION 3.2 Notices to Trustee. If the Company elects to redeem Initial
------------------
Notes pursuant to Paragraphs 8 or 9 of such Notes or Exchange Notes pursuant to
Paragraphs 7 or 8 thereof, it shall notify the Trustee in writing of the
Redemption Date and the principal amount of Notes to be redeemed at least 15
days prior to the giving of the notice contemplated by Section 3.4 (or such
shorter period as the Trustee in its sole discretion shall determine). The
Company shall give notice of redemption as required under the relevant paragraph
of the Notes pursuant to which such Notes are being redeemed.
SECTION 3.3 Selection of Notes to Be Redeemed. If less than all of the
---------------------------------
Notes are to be redeemed at any time, selection of such Notes for redemption
will be made by the Trustee in compliance with the requirements of the principal
securities exchange, if any, on which such Notes are listed, or if such Notes
are not so listed or such exchange prescribes no method of selection, on a pro
rata basis, by lot or by such other method as the Trustee in its sole discretion
shall deem fair and appropriate (and in such manner as complies with applicable
legal
31
and exchange requirements); provided, however, that no Note of $1,000 in
aggregate principal amount or less shall be redeemed in part. In the event of
partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the Redemption Date by the Trustee from the outstanding Notes not
previously called for redemption.
SECTION 3.4 Notice of Redemption. At least 30 days but not more than 60
--------------------
days before a Redemption Date, the Company shall publish in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Frankfurt (which is expected to be the Frankfurter
Allegmeine Zeitung) (and, if and so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of such stock exchange shall so require,
a newspaper having a general circulation in Luxembourg (which is expected to be
the Luxemburger Wort)) or in the case of Definitive Notes, mail to Holders by
first-class mail, postage prepaid, at their respective addresses as they appear
on the registration books of the Registrar. At the Company's request made at
least 45 days before the Redemption Date (or such shorter period as the Trustee
in its sole discretion shall determine), the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; provided,
however, that the Company shall deliver to the Trustee, an Officers' Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the following items. Each notice for
redemption shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Prices and the amount of interest, if any, Additional
Amounts, if any, and Liquidated Damages, if any, to be paid;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price plus accrued and unpaid
interest, if any, Additional Amounts, if any, and Liquidated Damages,
if any;
(e) that, unless the Company defaults in making the redemption payment,
interest, Additional Amounts, if any, and Liquidated Damages, if any,
on Notes called for redemption cease to accrue on and after the
Redemption Date, and the only remaining right of the Holders of such
Notes is to receive payment of the Redemption Price upon surrender to
the Paying Agent of the Notes redeemed;
(f) (i) if any Global Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date, interest, Additional Amounts, if any, and Liquidated
Damages, if any, shall cease to accrue on the portion called for
redemption, and upon surrender of such Global Note, the Global Note
with a notation on Schedule A thereof adjusting the principal amount
thereof to be equal to the unredeemed portion, will be returned and
(ii) if any Definitive Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed, and that, after the
32
Redemption Date, upon surrender of such Definitive Note, a new
Definitive Note or Notes in aggregate principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder
thereof, upon cancellation of the original Note;
(g) if fewer than all the Notes are to be redeemed, the identification of
the particular Notes (or portion thereof) to be redeemed, as well as
the aggregate principal amount of Notes to be redeemed and the
aggregate principal amount of Notes to be outstanding after such
partial redemption;
(h) the paragraph of the Notes pursuant to which the Notes are to be
redeemed; and
(i) the CUSIP, ISIN or Common Code number, and that no representation is
made as to the correctness or accuracy of the CUSIP, ISIN or Common
Code number, if any, listed in such notice or printed on the Notes.
SECTION 3.5 Effect of Notice of Redemption. Once notice of redemption
------------------------------
is given in accordance with Section 3.4, Notes called for redemption become due
and payable on the Redemption Date and at the Redemption Price plus accrued and
unpaid interest, if any, Additional Amounts, if any, and Liquidated Damages, if
any. Upon surrender to the Trustee or Paying Agent, such Notes called for
redemption shall be paid at the Redemption Price (which shall include accrued
and unpaid interest thereon, if any, Additional Amounts, if any, and Liquidated
Damages, if any, to the Redemption Date), but installments of interest, the
maturity of which is on or prior to the Redemption Date, shall be payable to
Holders of record at the close of business on the relevant Record Dates.
SECTION 3.6 Deposit of Redemption Price. Prior to 10:00 a.m. New York
---------------------------
City time on the Redemption Date, the Company shall deposit with the Paying
Agent cash in U.S. dollars sufficient to pay the Redemption Price plus accrued
and unpaid interest, if any, Additional Amounts, if any, and Liquidated Damages,
if any, of all Notes to be redeemed on that date. The Paying Agent shall
promptly return to the Company any cash in U.S. dollars so deposited which is
not required for that purpose upon the written request of the Company.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price plus accrued and unpaid
interest, if any, Additional Amounts, if any, and Liquidated Damages, if any,
interest, Additional Amounts and Liquidated Damages on the Notes to be redeemed
will cease to accrue on and after the applicable Redemption Date, whether or not
such Notes are presented for payment. With respect to Definitive Notes, if a
Definitive Note is redeemed on or after an interest Record Date but on or prior
to the related Interest Payment Date, then any accrued and unpaid interest,
Additional Amounts, if any, and Liquidated Damages, if any, shall be paid to the
Person in whose name such Note was registered at the close of business on such
Record Date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest, Additional Amounts, if any, and Liquidated
Damages, if any, shall be paid on the unpaid principal, from the redemption date
until such principal is paid, and to the extent lawful on any interest not paid
on such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.1.
33
SECTION 3.7 Notes Redeemed in Part. Upon surrender and cancellation of
----------------------
a Definitive Note that is redeemed in part, the Company shall execute and the
Trustee shall authenticate for the Holder (at the Company's expense) a new
Definitive Note equal in principal amount to the unredeemed portion of the
Definitive Note surrendered and canceled; provided, however, that each such
Definitive Note shall be in a principal amount at maturity of $1,000 or an
integral multiple thereof. Upon surrender of a Global Note that is redeemed in
part, the Paying Agent shall forward such Global Note to the Trustee who shall
make a notation on Schedule A thereof to reduce the principal amount of such
Global Note to an amount equal to the unredeemed portion of the Global Note
surrendered; provided, however, that each such Global Note shall be in a
principal amount at maturity of $1,000 or an integral multiple thereof.
ARTICLE IV
COVENANTS
---------
SECTION 4.1 Payment of Notes. (a) The Company shall pay the principal,
----------------
premium, if any, interest, Additional Amounts, if any, and Liquidated Damages,
if any, on the Notes in the manner provided in such Notes and this Indenture.
An installment of principal of or interest on the Notes shall be considered paid
on the date it is due if the Trustee or Paying Agent holds at 10:00 a.m. New
York City time on that date money deposited by the Company in immediately
available funds and designated for, and sufficient to pay the installment in
full and is not prohibited from paying such money to the Holders pursuant to the
terms of this Indenture.
(b) The Company shall pay, to the extent such payments are lawful,
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and on overdue installments of interest
(without regard to any applicable grace periods), on any Additional Amounts, and
on any Liquidated Damages, from time to time on demand at the rate borne by the
Notes plus 1.5% per annum. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
SECTION 4.2 Maintenance of Office or Agency. The Company shall maintain
-------------------------------
the office or agency (which office may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-Registrar) required under Section 2.3
where Notes may be surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.2. The Company hereby initially
designates the office of Corporation Services Company, located at Two World
Trade Center, Suite 8746, New York, New York, 10048, as its office or agency in
the State of New York as required under Section 2.3 hereof. If the Notes are
listed on the Luxembourg Stock Exchange, the Company will appoint Kredietbank
S.A. Luxembourgeoise, or such other Person located in Luxembourg, as an
additional paying and transfer agent.
34
SECTION 4.3 Limitation on Restricted Payments. (a) The Company will
---------------------------------
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or make any distribution on account of any
Equity Interest in the Company or any Restricted Subsidiary to the holders
thereof, including any dividend or distribution payable in connection with any
merger or consolidation (other than (A) dividends or distributions payable
solely in Equity Interests (other than Redeemable Stock) of the Company, (B)
dividends or distributions made only to the Company or a Restricted Subsidiary
and (C) pro rata dividends or distributions of Capital Stock of a Restricted
Subsidiary held by Persons other than the Company or a Restricted Subsidiary),
(ii) purchase, redeem, retire or otherwise acquire for value any Equity
Interests of the Company, an Unrestricted Subsidiary or a Restricted Subsidiary
(other than any such Equity Interests owned by the Company or any Restricted
Subsidiary), (iii) make any principal payment or redeem, purchase, repurchase,
defease, or otherwise acquire or retire for value, in each case, prior to any
scheduled repayment, or maturity, any Indebtedness of the Company that is
subordinated in right of payment to the Notes, or (iv) make any Investment,
other than a Permitted Investment, in any Person (all such payments or any other
actions described in clauses (i) through (iv) above being collectively referred
to as "Restricted Payments") unless, at the time of, and after giving effect to,
the proposed Restricted Payment:
(A) no Default or Event of Default shall have occurred and be continuing;
(B) the Company could Incur at least C1.00 of additional Indebtedness
under Section 4.4(a); and
(C) the aggregate amount expended for all Restricted Payments (the
amount so expended, if other than in cash, to be determined in good faith
by the Board of Directors, whose determination shall be conclusive and
evidenced by a Board Resolution) after the Issue Date is less than the sum
of (1) 50% of the aggregate amount of the Consolidated Net Income (or, if
the Consolidated Net Income is a loss, 100% of the amount of such loss)
accrued on a cumulative basis during the period (taken as one accounting
period) beginning on the first day of the fiscal quarter beginning
immediately following the Issue Date and ending on the last day of the last
fiscal quarter preceding the Transaction Date for which reports have been
filed with the Commission or provided to the Trustee pursuant to the
Section 4.10 plus (2) 100% of the aggregate Net Cash Proceeds received by
the Company after the Issue Date from the issuance and sale of its Equity
Interests (other than Redeemable Stock and excluding any Equity Interests
issued in connection with the Offering) to a Person (other than a
Subsidiary of the Company), except to the extent that such Net Cash
Proceeds are used (I) to purchase, redeem or otherwise retire Equity
Interests or Indebtedness as set forth below in clause (iii) or (iv) of the
immediately succeeding paragraph or (II) to Incur Indebtedness pursuant to
clause (x) of paragraph (b) of Section 4.4, plus (3) the aggregate amount
by which Indebtedness (other than any Indebtedness subordinated in right of
payment to the Notes) of the Company or any Restricted Subsidiary is
reduced on the Company's balance sheet upon the conversion or exchange
(other than by a Subsidiary of the Company) subsequent to the Issue Date
into Equity Interests (other than Redeemable Stock and less the amount of
any cash, or the fair value of property, distributed by the Company or any
Restricted
35
Subsidiary upon such conversion or exchange), plus (4) without duplication
of any amount included in the calculation of Consolidated Net Income, in
the case of repayment of, or return of capital with respect to, any
Investment constituting a Restricted Payment (including the redesignation
of Unrestricted Subsidiaries as Restricted Subsidiaries) made after the
Issue Date, an amount equal to the lesser of (x) the repayment of, or the
return of capital with respect to such Investment and (y) the cost of such
Investment, in either case less the cost of the disposition of such
Investment and net of taxes.
(b) The foregoing provisions of Section 4.3(a) shall not prohibit: (i)
the payment of any dividend within 60 days after the date of declaration thereof
if, at said date of declaration, such payment would comply with the provisions
of this Indenture; (ii) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness that is subordinated in
right of payment to the Notes including premium, if any, and accrued and unpaid
interest, with the proceeds of, or in exchange for, Indebtedness Incurred under
clause (iii) of paragraph Section 4.4(b); (iii) the repurchase, redemption or
other acquisition of Equity Interests in the Company in exchange for, or out of
the Net Cash Proceeds of, a substantially concurrent offering of Equity
Interests (other than Redeemable Stock and excluding any Equity Interests issued
in connection with the Offering) in the Company to any Person (other than a
Subsidiary); (iv) the repurchase, redemption or other acquisition of
Indebtedness of the Company which is subordinated in right of payment to the
Notes in exchange for, or out of the Net Cash Proceeds of, a substantially
concurrent offering of Equity Interests (other than Redeemable Stock and
excluding any Equity Interests issued in connection with the Offering) in the
Company to any Person (other than a Subsidiary); (v) repurchases of Equity
Interests of the Company from employees of the Company or any of its Restricted
Subsidiaries deemed to occur upon exercise of stock options if such Equity
Interests represent a portion of the exercise price of such options, provided
that any payments made pursuant to this clause (v) may not exceed in the
aggregate C5.0 million in any fiscal year of the Company; (vi) Investments in
any Person (the primary business of which is related, ancillary or complementary
to the business of the Company and its Restricted Subsidiaries on the date of
such Investment); provided that the aggregate amount of Investments made
pursuant to this clause (vi) does not exceed the sum of (a) C25.0 million, plus
(b) the amount of Net Cash Proceeds received by the Company after the Issue Date
from the issuance and sale of its Equity Interests (other than Redeemable Stock
and excluding any Equity Interests issued in connection with the Offering) to a
Person (other than a Subsidiary of the Company), except to the extent that such
Net Cash Proceeds are used (I) to make Restricted Payments pursuant to clause
(C)(2) of Section 4.3(a) or clauses (iii) or (iv) of Section 4.3(b) or (II) to
Incur Indebtedness pursuant to clause (x) of paragraph (b) of Section 4.4 plus
(c) the aggregate amount by which Indebtedness (other than any Indebtedness
subordinated in right of payment to the Notes) of the Company or any Restricted
Subsidiary is reduced on the Company's balance sheet upon the conversion or
exchange (other than by a Subsidiary of the Company) subsequent to the Issue
Date into Equity Interests (other than Redeemable Stock and less the amount of
any cash, or the fair value of property, distributed by the Company or any
Restricted Subsidiary upon such conversion or exchange); and (vii) Investments
acquired in exchange for Capital Stock (other than Redeemable Stock) of the
Company; provided that, in the case of clauses (ii) through (vii), no Default or
Event of Default shall have occurred and be continuing or occur as a consequence
of the actions or payments set forth therein.
36
Each Restricted Payment permitted pursuant to the immediately preceding
paragraph (other than the Restricted Payments referred to in clauses (ii) and
(vii) thereof and the Net Cash Proceeds from any issuance of Equity Interests
referred to in clauses (iii) and (iv) thereof) shall be included in calculating
whether the conditions of clause (C) of Section 4.3(a) have been met with
respect to any subsequent Restricted Payments. In the event the proceeds of an
issuance of Equity Interests (other than Redeemable Stock and excluding any
Equity Interests issued in connection with the Offering) of the Company are used
for the redemption, repurchase or other acquisition of the Notes, then the Net
Cash Proceeds of such issuance shall be included in clause (C) of Section 4.3(a)
only to the extent such proceeds are not used for such redemption, repurchase or
other acquisition of the Notes.
(c) Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.3 were computed, which calculations may
be based upon the Company's latest available financial statements. The Trustee
shall have no duty to recompute or recalculate or verify the accuracy of the
information set forth in such Officers' Certificate.
SECTION 4.4 Limitation on Indebtedness. (a) The Company will not,
--------------------------
and will not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness; provided, however, that if no Default or Event of Default shall
have occurred and be continuing at the time, or would occur as a consequence of
the Incurrence of any such Indebtedness, the Company may Incur Indebtedness if
immediately thereafter the ratio of (i) the aggregate principal amount of
Indebtedness of the Company and its Restricted Subsidiaries on a consolidated
basis outstanding as of the Transaction Date to (ii) the pro forma Consolidated
Cash Flow for the preceding two full fiscal quarters multiplied by two,
determined on a pro forma basis as if any such Indebtedness had been Incurred
and the proceeds thereof had been applied at the beginning of such two fiscal
quarters, would be greater than zero and less than or equal to 6.0 to 1.
(b) Notwithstanding the foregoing, (except for Indebtedness under
subsection (vii) below) the Company and (except for Indebtedness under
subsections (v), (vi), (x) and (xii) below) any Restricted Subsidiary may Incur
each and all of the following:
(i) Indebtedness (other than Acquired Indebtedness) in an aggregate
principal amount at any one time outstanding not to exceed C100.0 million
Incurred to finance the cost (provided that such Indebtedness is Incurred
at any time on or before, or within 90 days following, the incurrence of
such cost) (including the cost of design, development, construction,
acquisition, transportation, installation or integration) of equipment,
inventory or network assets used in the Permitted Business or Equity
Interests of (A) a Restricted Subsidiary that owns principally such assets
from a Person other than the Company or a Restricted Subsidiary of the
Company or (B) any Person that is principally engaged in the Permitted
Business, that would become a Restricted Subsidiary and owns principally
such assets; provided that (x) any such Indebtedness of a Restricted
Subsidiary must be Incurred under one or more Credit Facilities, under one
or more Capitalized Leases or from the vendor of the equipment, inventory
or network assets acquired with the proceeds of such Indebtedness, (y) the
amount of such Indebtedness of the Company
37
or any Restricted Subsidiary may not exceed the Fair Market Value of the
assets so acquired and (z) the amount of any such Indebtedness permitted to
be Incurred to acquire Equity Interests pursuant to clauses (A) or (B)
shall be reduced by the amount of any Acquired Indebtedness Incurred in
such acquisition;
(ii) Indebtedness of any Restricted Subsidiary owing to and held by the
Company, Indebtedness of the Company owing to and held by any Restricted
Subsidiary or Indebtedness of any Restricted Subsidiary owing to and held
by any other Restricted Subsidiary; provided that any subsequent issuance
or transfer of any Capital Stock or any other event which results in any
such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Company or
another Restricted Subsidiary) shall be deemed, in each case, to constitute
the Incurrence of such Indebtedness not permitted by this clause (ii); and
provided, further, that Indebtedness of the Company owing to and held by a
Restricted Subsidiary must be unsecured and subordinated in right of
payment to the Notes;
(iii) Indebtedness issued in exchange for, or the net proceeds of which
are used to refinance or refund, then outstanding Indebtedness of the
Company or a Restricted Subsidiary, other than Indebtedness Incurred under
clauses (ii), (iv), (vii), (viii), (x) and (xii) of this paragraph, and any
refinancings thereof in an amount not to exceed the amount so refinanced or
refunded (plus premiums, accrued interest, and reasonable fees and
expenses); provided that such new Indebtedness shall only be permitted
under this clause (iii) if (A) in case the Notes are refinanced in part or
the Indebtedness to be refinanced or refunded is pari passu with the Notes,
such new Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such new Indebtedness is issued or remains
outstanding, is expressly made pari passu with, or subordinate in right of
payment to, the remaining Notes, (B) in case the Indebtedness to be
refinanced is subordinated in right of payment to the Notes, such new
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such new Indebtedness is issued or remains outstanding,
is expressly made subordinate in right of payment to the Notes at least to
the extent that the Indebtedness to be refinanced or refunded is
subordinated to the Notes, (C) the Stated Maturity of such new
Indebtedness, determined as of the date of Incurrence of such new
Indebtedness, is no earlier than the Stated Maturity of the Indebtedness
being refinanced or refunded and (D) such new Indebtedness, determined as
of the date of Incurrence of such new Indebtedness, has a Weighted Average
Life to Maturity which is not less than the remaining Weighted Average Life
to Maturity of the Indebtedness to be refinanced or refunded; and provided
further that in no event may Indebtedness of the Company be refinanced or
refunded by means of any Indebtedness of any Restricted Subsidiary pursuant
to this clause (iii);
(iv) Indebtedness (A) in respect of performance, surety or appeal bonds
or letters of credit supporting Trade Payables, in each case provided in
the ordinary course of business, (B) under Currency Agreements and Interest
Rate Agreements; provided that such agreements (x) are designed solely to
protect the Company or the Restricted Subsidiary, as the case may be,
against fluctuations in foreign currency exchange rates or interest rates
and (y) do not increase the Indebtedness of the obligor outstanding at any
38
time other than as a result of fluctuations in foreign currency exchange
rates or interest rates or by reason of fees, indemnities and compensation
payable thereunder, and (C) arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or
from Guarantees or letters of credit, bankers' acceptances, surety bonds or
performance bonds securing any obligations of the Company or any of its
Restricted Subsidiaries pursuant to such agreements, in any case Incurred
in connection with the disposition of any business, assets or Restricted
Subsidiary of the Company (other than Guarantees of Indebtedness Incurred
for the purpose of financing such acquisition by the Person acquiring all
or any portion of such business, assets or Restricted Subsidiary), in a
principal amount not to exceed the gross proceeds actually received by the
Company or any Restricted Subsidiary in connection with such disposition;
(v) Indebtedness, to the extent that the net proceeds thereof are
promptly (A) used to repurchase Notes tendered in a Change of Control Offer
or (B) deposited to defease all of the Notes as described in Sections 8.1,
8.2 and 8.3;
(vi) Indebtedness of the Company represented by the Notes;
(vii) Indebtedness represented by a Guarantee of the Notes and Guarantees
of other Indebtedness of the Company by a Restricted Subsidiary in each
case permitted by and made in accordance with Section 4.17;
(viii) Indebtedness under one or more Credit Facilities (which shall be
in addition to any such Indebtedness incurred under one or more Credit
Facilities under clause (b)(i) above), in an aggregate principal amount at
any one time outstanding not to exceed the greater of (x) C50.0 million and
(y) 80.0% of Eligible Accounts Receivable at such time;
(ix) Acquired Indebtedness provided that the aggregate amount of such
Acquired Indebtedness of the Person that is to become a Restricted
Subsidiary, or to be merged or consolidated with or into the Company or any
Restricted Subsidiary in the contemplated transaction, or to be assumed by
the Company or a Restricted Subsidiary in connection with an Asset
Acquisition, outstanding at the time of such transaction does not exceed
the Fair Market Value of the equipment, inventory, network assets and Cash
Equivalents of any Restricted Subsidiary so acquired or that are acquired
in such Asset Acquisition, as the case may be;
(x) Indebtedness of the Company not to exceed, at any one time
outstanding, the sum of:
(A) 2.00 times the Net Cash Proceeds received from the issuance
and sale, other than to a Subsidiary, of Equity Interests (other than
Redeemable Stock and excluding any Equity Interests issued in connection
with the Offering) of the Company, less, (I) the amount of such proceeds
used to make Restricted Payments as provided in clause (C)(2) of
subsection 4.3(a) or clauses (iii) or (iv) of the first paragraph of
subsection 4.3(b) and (II) if such proceeds are used to consummate a
transaction pursuant to which
39
the Company Incurs Acquired Indebtedness, one-half of the amount of such
Acquired Indebtedness so Incurred and
(B) the Fair Market Value of any Permitted Assets acquired by the
Company in exchange for Equity Interests of the Company issued after the
Issue Date; provided, however, that in determining the Fair Market Value
of any such Permitted Assets so acquired, if the estimated Fair Market
Value of such Permitted Assets exceeds (x) C2.0 million, then the Fair
Market Value of such Permitted Assets will be determined by a majority of
the Board of Directors, which determination will be evidenced by a
resolution thereof, and (y) C10.0 million, then the Company will deliver
the Trustee a written appraisal as to the fair market value of such
Permitted Assets prepared by an internationally recognized investment
banking or public accounting firm (or, if no such investment banking or
public accounting firm is qualified to prepare such an appraisal, by an
internationally recognized appraisal firm); and provided further that
such Indebtedness (other than the Indebtedness Incurred under one or more
Credit Facilities, under one or more Capitalized Leases or from the
vendor of assets, property or services acquired with the proceeds of such
Indebtedness) does not mature prior to the Stated Maturity of the Notes
and the Weighted Average Life to Maturity of such Indebtedness is longer
than that of the Notes;
(xi) Indebtedness outstanding as of the Issue Date; and
(xii) Unsecured Indebtedness of the Company (in addition to Indebtedness
permitted under clauses (i) through (xi) above) in an aggregate principal
amount outstanding at any one time not to exceed C200.0 million.
(c) For purposes of determining any particular amount of Indebtedness
under subsection 4.4, Guarantees, Liens or obligations with respect to letters
of credit supporting Indebtedness otherwise included in the determination of
such particular amount shall not be included; provided, however, that the
foregoing shall not in any way be deemed to limit the provisions of Section
4.17. For purposes of determining compliance with this Section 4.4, (A) in the
event that an item of Indebtedness meets the criteria of more than one of the
types of Indebtedness described in the above clauses of subsection 4.4(b), the
Company, in its sole discretion, shall classify such item of Indebtedness and
only be required to include the amount and type of such Indebtedness in one of
such clauses and (B) the principal amount of Indebtedness issued at a price that
is less than the principal amount thereof shall be equal to the amount of the
liability in respect thereof determined in conformity with U.S. GAAP.
(d) For purposes of determining compliance with any Euro-denominated
restriction on the Incurrence of Indebtedness, the Euro-equivalent principal
amount of Indebtedness denominated in a non-Euro currency shall be calculated
based on the relevant currency exchange rate in effect on the date such
Indebtedness was Incurred, in the case of term Indebtedness, or first committed,
in the case of revolving credit Indebtedness; provided that if such Indebtedness
is Incurred to refinance other Indebtedness denominated in a non-Euro currency,
and such refinancing would cause the applicable Euro-denominated restriction to
be exceeded if calculated at the relevant currency exchange rate in effect on
the date of such refinancing, such Euro-
40
denominated restriction shall be deemed not to have been exceeded so long as the
principal amount of such refinancing Indebtedness does not exceed the principal
amount of such Indebtedness being refinanced. The principal amount of any
Indebtedness incurred to refinance other Indebtedness, if Incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
refinancing Indebtedness is denominated that is in effect on the date of such
refinancing.
SECTION 4.5 Corporate Existence. Except as otherwise permitted by
-------------------
Article V, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate, partnership, limited liability or other existence of each of its
Subsidiaries in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and the rights
(charter and statutory) of the Company and each of its Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right, or
the corporate, partnership, limited liability or other existence of any
Subsidiary, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and each of its Subsidiaries, taken as a whole, and that the loss
thereof is not, and will not be, adverse in any material respect to the Holders.
SECTION 4.6 Payment of Taxes and Other Claims. The Company shall pay or
---------------------------------
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges levied
or imposed upon it or any of its Subsidiaries or upon the income, profits or
property of it or any of its Subsidiaries and (ii) all lawful claims for labor,
materials and supplies which, in each case, if unpaid, might by law become a
material liability or Lien upon the property of it or any of its Subsidiaries;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which appropriate provision has been made.
SECTION 4.7 Maintenance of Properties and Insurance. (a) The Company
---------------------------------------
shall cause all material properties owned by or leased by it or any of its
Subsidiaries useful and necessary to the conduct of its business or the business
of any of its Subsidiaries to be improved or maintained and kept in normal
condition, repair and working order and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
its judgment may be necessary, so that the business carried on in connection
therewith may be properly conducted at all times; provided, however, that
nothing in this Section 4.7 shall prevent the Company or any of its Subsidiaries
from discontinuing the use, operation or maintenance of any of such properties,
or disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Board of Directors or of the board of directors of any
Subsidiary of the Company concerned, or of an officer (or other agent employed
by the Company or of any of its Subsidiaries) of the Company or any of its
Subsidiaries having managerial responsibility for any such property, desirable
in the conduct of the business of the Company or any Subsidiary of the Company,
and if such discontinuance or disposal is not adverse in any material respect to
the Holders.
41
(b) To the extent available at commercially reasonable rates, the Company
shall maintain, and shall cause its Subsidiaries to maintain, insurance with
responsible carriers against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and co-insurance provisions, as
are customarily carried by similar businesses of similar size.
SECTION 4.8 Compliance Certificate; Notice of Default. (a) The Company
-----------------------------------------
shall deliver to the Trustee, within 90 days after the close of each fiscal
year, an Officers' Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether
it has kept, observed, performed and fulfilled, and has caused each of its
Subsidiaries to keep, observe, perform and fulfill its obligations under this
Indenture and the Collateral Agreement and further stating, as to each such
Officer signing such certificate, that, to the best of his or her knowledge, the
Company during such preceding fiscal year has kept, observed, performed and
fulfilled, and has caused each of its Subsidiaries to keep, observe, perform and
fulfill each and every such covenant contained in this Indenture and the
Collateral Agreement and no Default occurred during such year and at the date of
such certificate there is no Default which has occurred and is continuing or, if
such signers do know of such Default, the certificate shall describe its status,
with particularity and that, to the best of his or her knowledge, no event has
occurred and remains by reason of which payments on the account of the principal
of or interest, if any, Additional Amounts, if any, or Liquidated Damages, if
any, on the Notes is prohibited or if such event has occurred, a description of
the event and what action each is taking or proposes to take with respect
thereto. The Officers' Certificate shall also notify the Trustee should the
Company elect to change the manner in which it fixes its fiscal year end. The
Company shall notify the Trustee of any default or defaults in the performance
of any covenants or agreements under this Indenture or the Collateral Agreement
within five Business Days of becoming aware of any such default.
(b) The annual financial statements delivered pursuant to Section 4.10
shall include, so long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, a written report of the
Company's independent accountants (who shall be a firm of established
international reputation) that in conducting their audit of such financial
statements nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Articles IV, V or VI of this
Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) The Company shall deliver to the Trustee, within 5 Business Days,
upon any officer becoming aware of any Default or any default or event of
default under any document, instrument or agreement representing Indebtedness of
the Company, an Officers' Certificate specifying the Default or such default or
event of default and describing its status with particularity.
SECTION 4.9 Compliance with Laws. The Company shall comply, and shall
--------------------
cause each of its Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders of the relevant jurisdiction in which they are incorporated
and/or in which they carry on business,
42
all political subdivisions thereof, and of any relevant governmental regulatory
authority, in respect of the conduct of their respective businesses and the
ownership of their respective properties, except for such noncompliances as
would not in the aggregate have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries taken as
a whole.
SECTION 4.10 Reports. (a) The Company will file on a timely basis with
-------
the Commission, to the extent such filings are accepted by the Commission and
whether or not the Company has a class of securities registered under the
Exchange Act, (i) all annual and quarterly financial statements and other
financial information that would be required to be contained in a filing with
the Commission on Forms 10-K and 10-Q (which financial statements shall be
prepared in accordance with U.S. GAAP), including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with respect to
the annual financial information, a report thereon by the Company's certified
independent accountants and (ii) all current reports that would be required to
be filed with the Commission on Form 8-K, in each case, if the Company had a
class of securities registered under the Exchange Act, whether or not the
Company has such a class of securities registered under the Exchange Act. Such
quarterly financial information shall be filed with the Commission within 45
days following the end of each fiscal quarter of the Company, and such annual
financial information shall be furnished within 90 days following the end of
each fiscal year of the Company. Such annual financial information shall include
the geographic segment financial information required to be disclosed by the
Company under Item 101(d) of Regulation S-K under the Securities Act. The
Company shall also (a) file with the Trustee, and provide to each holder,
without cost to such holder, copies of such reports and documents within 15 days
after the date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required, and (b) if filing such
reports and documents with the Commission is not accepted by the Commission or
is prohibited under the Exchange Act, to supply, at the Company's cost, copies
of such reports and documents to any prospective holder promptly upon request.
In addition, if and so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of such stock exchange shall require, copies of all
reports and information described above will be deposited with and available
during normal business hours at the office of the Company's listing agent in
Luxembourg.
(b) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(c) Such reports shall be delivered to the Registrar and the Registrar
will mail them at the Company's expense to the Holders at their addresses
appearing in the register of Notes maintained by the Registrar if so requested
by the Holders in writing.
(d) Upon qualification of this Indenture with the TIA, the Company shall
also comply with the provisions of TIA Section 314(a).
43
SECTION 4.11 Waiver of Stay; Extension or Usury Laws. The Company
---------------------------------------
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive the Company from paying all or any portion of the
principal of and/or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture, and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 4.12 Limitation on Transactions with Shareholders and Affiliates.
-----------------------------------------------------------
(a) The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, enter into, renew or extend any transaction or series of
transactions (including, without limitation, the purchase, sale, lease or
exchange of property or assets, or the rendering of any service) with any direct
or indirect holder (or any Affiliate of such holder) of 5% or more of any class
of Capital Stock of the Company or with any Affiliate of the Company or any
Restricted Subsidiary, unless:
(i) such transaction or series of transactions is on terms that are no
less favorable to the Company or such Restricted Subsidiary than could
reasonably be obtained in a comparable arm's-length transaction with a
Person that is not such a holder or Affiliate;
(ii) if such transaction or series of transactions involves aggregate
consideration in excess of C2.5 million, the Company shall have delivered
to the Trustee a resolution set forth in an Officers' Certificate adopted
by a majority of the Board of Directors, including a majority of the
independent, disinterested directors, approving such transaction or series
of transactions and certifying that such transaction or series of
transactions comply with paragraph (i) above; and
(iii) if such transaction or series of transactions involves aggregate
consideration in excess of C7.5 million, the Company shall have delivered
to the Trustee a written opinion as to the fairness to the Company or such
Restricted Subsidiary of such transaction or series of transactions from a
financial point of view from an internationally recognized investment
banking firm (or, if an investment banking firm is generally not qualified
to give such an opinion, by an internationally recognized appraisal firm or
accounting firm).
(b) The foregoing limitation does not limit and will not apply to (i) any
transaction between the Company and any of its Restricted Subsidiaries or
between Restricted Subsidiaries; (ii) the payment of reasonable and customary
regular fees to directors of the Company who are not employees of the Company;
(iii) the payment of dividends, distributions or other amounts by the Company or
any Restricted Subsidiary permitted by Section 4.3; (iv) issuances of Equity
Interests (other than Redeemable Stock) on terms consistent with the
requirements of paragraph (i) of the preceding subsection; and (v) any payments
or other transactions pursuant to tax-sharing agreements between the Company and
any other Person with which the Company files a
44
consolidated tax return or with which the Company is part of a consolidated
group for tax purposes.
SECTION 4.13 Limitation on Dividend and Other Payment Restrictions
-----------------------------------------------------
Affecting Restricted Subsidiaries. (a) The Company will not, and will not
- ---------------------------------
permit any Restricted Subsidiary to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions permitted by
applicable law on any Equity Interests of such Restricted Subsidiary
owned by the Company or any other Restricted Subsidiary,
(ii) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary,
(iii) make loans or advances to the Company or any other
Restricted Subsidiary, or
(iv) transfer any of its property or assets to the Company or
any other Restricted Subsidiary.
(b) The foregoing provisions shall not prohibit any encumbrances or
restrictions: (i) existing under or by reason of any agreement in effect on the
Issue Date, and any amendments, supplements, extensions, refinancings, renewals
or replacements of such agreements; provided that the encumbrances and
restrictions in any such amendments, supplements, extensions, refinancings,
renewals or replacements are no more restrictive than those encumbrances or
restrictions that are then in effect and that are being amended, supplemented,
extended, refinanced, renewed or replaced; (ii) existing under or by reason of
applicable law; (iii) existing with respect to any Restricted Subsidiary
acquired by the Company or any Restricted Subsidiary after the Issue Date, or
the property or assets of such Restricted Subsidiary, and existing at the time
of such acquisition and not incurred in contemplation thereof, which
encumbrances or restrictions are not applicable to any Person or the property or
assets of any Person other than such Person or the property or assets of such
Person so acquired; (iv in the case of clause (iv) of subsection 4.13(a), (A)
that restrict in a customary manner the subletting, assignment or transfer of
any property or asset that is, or is subject to, a lease, purchase mortgage
obligation, license, conveyance or contract or similar property or asset, (B)
existing by virtue of any transfer of, agreement to transfer, option or right
with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising
or agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, materially
detract from the value of property or assets of the Company or any Restricted
Subsidiary to the Company or any Restricted Subsidiary; (v) with respect to a
Restricted Subsidiary and imposed pursuant to an agreement that has been entered
into for the sale or disposition of all or substantially all of the Capital
Stock in, or property and assets of, such Restricted Subsidiary; provided that
such restriction shall terminate if such transaction is abandoned or if such
transaction is not consummated within six months of the date
45
such agreement was entered into; or (vi) contained in the terms of any
Indebtedness or any agreement pursuant to which such Indebtedness was issued if
(A) the encumbrance or restriction applies only in the event of a payment
default or a default with respect to a financial covenant contained in such
Indebtedness or agreement, (B) the encumbrance or restriction is not materially
more disadvantageous to the holders of the Notes than is customary in comparable
financings (as determined by the Board of Directors) and (C) the Board of
Directors determines that any such encumbrance or restriction will not
materially affect the Company's ability to make principal or interest payments
on the Notes.
(c) Nothing contained in this Section 4.13 shall prevent the Company or
any Restricted Subsidiary from creating, incurring, assuming or suffering to
exist any Liens otherwise permitted in Section 4.14 that limit the right of the
debtor to dispose of the assets securing such Indebtedness.
SECTION 4.14 Limitation on Liens. The Company will not, and will not
-------------------
permit any Restricted Subsidiary to, directly or indirectly, create, incur,
assume or suffer to exist any Lien (other than Permitted Liens) on any asset or
property of the Company or any Restricted Subsidiary without making effective
provisions for all of the Notes and all other amounts due under this Indenture
to be directly secured equally and ratably with (or, if the obligation or
liability to be secured by such Lien is subordinated in right of payment to the
Notes, prior to) the obligation or liability secured by such Lien; provided that
any Lien which is granted to secure the Notes under this covenant shall be
discharged at the same time as the discharge of the Lien that gave rise to the
obligation to so secure the Notes.
SECTION 4.15 Change of Control. (a) Upon the occurrence of a Change of
-----------------
Control, the Company will make an offer to purchase all or any part (equal to
$1,000 in principal amount and integral multiples thereof) of the Notes pursuant
to the offer described below (the "Change of Control Offer") at a price in cash
-----------------------
(the "Change of Control Payment") equal to 101% of the aggregate principal
-------------------------
amount thereof plus accrued and unpaid interest, thereon to the date of
repurchase, plus Additional Amounts, if any, and Liquidated Damages, if any, to
the date of repurchase (and in the case of Definitive Notes, subject to the
right of Holders of record on the relevant record date to receive interest and
Liquidated Damages, if any, due on the relevant interest payment date and
Additional Amounts, if any, in respect thereof). Within 30 days following any
Change of Control, the Company will publish notice of such in a leading
newspaper having a general circulation in New York (which is expected to be The
Wall Street Journal) and in Frankfurt (which is expected to be the Frankfurter
Allgemeine Zeitung) (and, if and so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of such stock exchange shall so require,
a newspaper having a general circulation in Luxembourg (which is expected to be
the Luxemburger Wort)) or, in the case of Definitive Notes, mail a notice to
each Holder (and if and so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of such stock exchange shall so require, will publish
notice in a newspaper having a general circulation in Luxembourg (which is
expected to be the Luxemburger Wort)), with a copy to the Trustee, with the
following information: (i) a Change of Control Offer is being made pursuant to
this Section 4.15 and all Notes properly tendered pursuant to such Change of
Control Offer will be accepted for payment; (ii) the purchase price and the
purchase date, which will be no earlier than 30 days nor later than 60 days from
the date such notice is published, or where
46
relevant, mailed, except as may be otherwise required by applicable law (the
"Change of Control Payment Date"); (iii) any Note not properly tendered will
------------------------------
remain outstanding and continue to accrue interest and Liquidated Damages, if
any; (iv) unless the Company defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of Control Offer
will cease to accrue interest and Liquidated Damages, if any, on the Change of
Control Payment Date; (v) Holders electing to have any Notes purchased pursuant
to a Change of Control Offer will be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, to the Paying Agent or a depositary and at the address specified in
the notice prior to the close of business on the third Business Day preceding
the Change of Control Payment Date; (vi) Holders will be entitled to withdraw
their tendered Notes and their election to require the Company to purchase such
Notes; provided that the Paying Agent or a depositary receives, not later than
the close of business on the last Business Day of the offer period, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes tendered for purchase, and a statement that such Holder is
withdrawing his tendered Notes and his election to have such Notes purchased;
and (vii) Holders whose Notes are being purchased only in part will be issued
new Notes equal in principal amount to the unpurchased portion of the principal
amount of the Notes surrendered, which unpurchased portion must be equal to
$1,000 in principal amount or an integral multiple thereof.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder and will
comply with the applicable laws of any non-U.S. jurisdiction in which a Change
of Control Offer is made, in each case, to the extent such laws or regulations
are applicable in connection with the repurchase of the Notes pursuant to a
Change of Control Offer. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Indenture, the Company
will comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations contained in this Indenture by virtue
thereof. The provisions relating to the Company's obligation to make an offer to
repurchase the Notes as a result of a Change of Control may be waived or
modified with the written consent of the Holders of a majority in principal
amount of the Notes.
(b) On the Change of Control Payment Date, the Company will, to the
extent permitted by law, (i) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent an amount equal to the aggregate Change of Control Payment in
respect of all Notes or portions thereof so tendered and (iii) deliver, or cause
to be delivered, to the Trustee for cancellation the Notes so accepted together
with an Officers' Certificate stating that such Notes or portions thereof have
been tendered to and purchased by the Company. The Paying Agent will promptly
either (x) pay to the Holder against presentation and surrender (or, in the case
of partial payment, endorsement) of the Global Notes or (y) in the case of
Definitive Notes, mail to each Holder of Notes, the Change of Control Payment
for such Notes, and the Trustee will promptly authenticate and deliver to the
Holder of the Global Notes a new Global Note or Notes or, in the case of
Definitive Notes, mail to each Holder a new Definitive Note, as applicable,
equal in principal amount to any unpurchased portion of the Notes surrendered,
if any; provided, however, that each new Definitive Note and Global Note will be
in a principal amount of $1,000 or an integral multiple
47
thereof. The Company will publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Change of Control Payment Date.
SECTION 4.16 Limitation on Asset Sales. (a) The Company will not, and
-------------------------
will not permit any Restricted Subsidiary to, make any Asset Sale unless (i) the
Company or the Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the Fair Market Value of the
assets sold or disposed of and (ii) at least 75% of the consideration received
for such Asset Sale consists of cash or Cash Equivalents or Replacement Assets
or the assumption of Indebtedness which ranks equal in right of payment with the
Notes.
(b) The Company shall, or shall cause the relevant Restricted Subsidiary
to, apply the Net Cash Proceeds from an Asset Sale within 360 days of the
receipt thereof to (A) permanently prepay, repay or purchase unsubordinated
Indebtedness of the Company or any Restricted Subsidiary providing a Guarantee
pursuant to Section 4.17 or Indebtedness of any other Restricted Subsidiary, in
each case owing to a Person other than the Company or any of its Restricted
Subsidiaries, and elect to permanently reduce the commitments thereunder by the
amount of such Indebtedness prepaid, repaid or purchased, (B) invest in
Replacement Assets or (C) in any combination of prepayment, repayment, purchase
and reinvestment permitted by the foregoing clauses (A) and (B).
Any Net Cash Proceeds from such Asset Sale that are not invested as
provided and within the time period set forth in the first sentence of this
subsection will be deemed to constitute "Excess Proceeds." If at any time the
---------------
aggregate amount of Excess Proceeds exceeds C5.0 million, the Company shall,
within 15 Business Days thereafter, make an offer to all Holders of Notes (an
"Asset Sale Offer") to purchase on a pro rata basis the maximum principal amount
- -----------------
of Notes, that is an integral multiple of $1,000 that may be purchased out of
the Excess Proceeds at an offer price in cash in an amount equal to 100% of the
outstanding principal amount thereof, plus accrued and unpaid interest thereon,
plus Additional Amounts, if any, and Liquidated Damages, if any, to the date
fixed for the closing of such offer (and, in the case of Definitive Notes,
subject to the right of a Holder of record on the relevant record date to
receive interest and Liquidated Damages, if any, due on the relevant interest
payment date and Additional Amounts, if any, in respect thereof), in accordance
with the procedures set forth in this Indenture. The Company will commence an
Asset Sale Offer by publishing and mailing the notice required pursuant to the
terms of this Indenture, with a copy to the Trustee. To the extent that the
aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, subject to applicable law, the Company may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the selection of such Notes for purchase will be made by the
Trustee in the same manner as the Notes are redeemed, as provided in Section
3.1. Upon completion of any such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
------------
Business Days after the termination of the Offer Period (the "Purchase Date"),
-------------
the Company shall purchase the maximum principal amount of
48
Notes that may be purchased with such Excess Proceeds (or such pro rata portion)
(which maximum principal amount of Notes shall be the "Offer Amount") or, if
------------
less than the Offer Amount has been tendered, all Notes tendered in response to
the Asset Sale Offer.
If the Purchase Date is on or after an interest Record Date and on or
before the related Interest Payment Date, any accrued and unpaid interest will
be paid in the case of a Global Note, to the Holder thereof or, in the case of a
Definitive Note, to the Person in whose name such Definitive Note is registered
at the close of business on such Record Date, and no additional interest will be
payable to Holders with respect to Notes tendered pursuant to the Asset Sale
Offer.
At least 30 days but not more than 60 days before a Purchase Date, the
Company shall publish in a leading newspaper having a general circulation in New
York (which is expected to be The Wall Street Journal) and in Frankfurt (which
is expected to be the Frankfurter Allgemeine Zeitung) (and, if and so long as
the Notes are listed on the Luxembourg Stock Exchange and the rules of such
Stock Exchange shall so require, a newspaper having a general circulation in
Luxembourg (which is expected to be the Luxemburger Wort)) or, in the case of
Definitive Notes, mail to Holders by first-class mail, postage prepaid, at their
respective addresses as they appear on the registration books of the Registrar
with a copy of such notice to the Trustee (and, if and so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such Stock Exchange
shall so require, publish in a newspaper having a general circulation in
Luxembourg (which is expected to be the Luxemburger Wort)). The notice shall
contain all instructions and materials (or instructions on how to obtain
instructions and materials) necessary to enable such Holders to tender Notes
pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all
Holders. The notice, which shall govern the terms of the Asset Sale Offer,
shall state:
(A) that the Asset Sale Offer is being made pursuant to this
Section 4.16 and the length of time the Asset Sale Offer shall remain
open;
(B) the Offer Amount (including the amount of accrued and unpaid
interest, if any), the purchase price and the Purchase Date;
(C) that any Note or portion thereof not tendered or accepted
for payment shall continue to accrue interest, Additional Amounts, if
any, and Liquidated Damages, if any, in accordance with the terms
thereof;
(D) that, unless the Company defaults in making payment therefor
any Note or portion thereof accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest, Additional Amounts, if any,
and Liquidated Damages, if any, after the Purchase Date;
(E) (1) if any Global Note is being purchased in part, the
portion of the principal amount of such Note to be purchased and that,
after the Purchase Date, interest, Additional Amounts, if any, and
Liquidated Damages, if any, shall cease to accrue on the portion to be
purchased, and upon surrender of such Global Note, the Global Note
49
with a notation on Schedule A thereof adjusting the principal amount
thereof to be equal to the unpurchased portion, will be returned and
(2) if a Definitive Note may be purchased in part, that, after the
Purchase Date, upon surrender of such Definitive Note, a new
Definitive Note or Notes in aggregate principal amount equal to the
unpurchased portion thereof will be issued in the name of the Holder
thereof, upon cancellation of the original Note;
(F) that Holders electing to have a Note or portion thereof
purchased pursuant to any Asset Sale Offer shall be required to
surrender the Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three Business Days before
the Purchase Date and must complete any form letter of transmittal
proposed by the Company and acceptable to the Trustee and the Paying
Agent;
(G) that, subject to applicable law, Holders shall be entitled
to withdraw their election if the Company, depositary or Paying Agent,
as the case may be, receives, not later than the second Business Day
before the Purchase Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Note or
portion thereof the Holder delivered for purchase, the Note
certificate number and a statement that such Holder is withdrawing his
election to have the Note or portion thereof purchased;
(H) that, if the aggregate principal amount of Notes tendered by
Holders exceeds the Offer Amount, the selection of such Notes for
purchase will be made by the Trustee in compliance with the
requirements of the principal securities exchange, if any, on which
such Notes are listed, or if such Notes are not so listed or such
exchange prescribes no method of selection, subject to applicable law,
on a pro rata basis by lot or by such other method as the Trustee in
its sole discretion shall deem fair and appropriate (and in such
manner as complies with applicable legal and exchange requirements);
provided, however, that no Notes of $1,000 or less shall be purchased
in part; provided further, that, subject to applicable law, in the
event of partial purchase by lot, the particular Notes to be purchased
shall be selected, unless otherwise provided herein, by the Registrar
or Trustee from the outstanding Notes not previously called for
purchase; and
(I) the instructions that Holders must follow to tender their
Notes.
On or before the Purchase Date, the Company shall, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes or portions
thereof tendered, and deliver to the Trustee an Officers' Certificate stating
that such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 4.16. On the Purchase Date, the
Paying Agent shall promptly cause the principal amount of any Global Note so
tendered to be adjusted on Schedule A thereof to be equal to any unpurchased
portion of such Global Note which
50
unpurchased portion must be equal to $1,000 in principal amount or an integral
multiple thereof, and shall promptly authenticate and mail or deliver to each
tendering Holder of a Definitive Note, a new Definitive Note or Notes equal in
principal amount to any unpurchased portion of the Definitive Note surrendered
which unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof. DTC, the Paying Agent or the Company, as the case may
be, shall promptly (but in any case not later than five Business Days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
Offer Amount of the Notes tendered by such Holder and accepted by the Company
for purchase. Any Notes not so accepted shall be promptly mailed or delivered by
or on behalf of the Company to the Holder thereof. The Company shall publicly
announce the results of the Asset Sale Offer not later than the second Business
Day following the Purchase Date.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder and will
comply with the applicable laws of any non-U.S. jurisdiction in which an Asset
Sale Offer is made, in each case, to the extent such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to an Asset
Sale Offer. To the extent that the provisions of any securities laws or
regulations conflict with the provisions hereunder, the Company will comply with
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations described in this Indenture by virtue thereof.
SECTION 4.17 Limitation on Issuance of Guarantees of Indebtedness by
-------------------------------------------------------
Restricted Subsidiaries. (a) The Company shall not permit any Restricted
- -----------------------
Subsidiary, directly or indirectly, to guarantee, assume or in any other manner
become liable with respect to any Indebtedness of the Company unless (i) such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture to this Indenture providing for a Guarantee of all of the Company's
obligations under the Notes and this Indenture on terms substantially similar to
the guarantee of such Indebtedness, except that if such Indebtedness is by its
express terms subordinated in right of payment to the Notes, any such
assumption, Guarantee or other liability of such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated in right of payment to such
Restricted Subsidiary's assumption, Guarantee or other liability with respect to
the Notes substantially to the same extent as such Indebtedness is subordinated
to the Notes and (ii) such Restricted Subsidiary waives, and will not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Guarantee; provided that any Restricted Subsidiary may
guarantee Indebtedness of the Company under a Credit Facility if such
Indebtedness is Incurred in accordance with Section 4.4; and provided further
that this paragraph shall not be applicable to any Guarantee of any Restricted
Subsidiary that existed at the time such Person became a Restricted Subsidiary
and was not incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary.
(b) Notwithstanding the foregoing subsection (a), any Guarantee of all of
the Company's obligations under the Notes and this Indenture by a Restricted
Subsidiary may provide by its terms that it will be automatically and
unconditionally released and discharged upon (i) any sale, exchange or transfer,
to any Person not an Affiliate of the Company, of all of
51
the Company's and each Restricted Subsidiary's Equity Interests in, or all or
substantially all of the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture), or (ii) the release
or discharge of the guarantee which resulted in the creation of such Guarantee,
except a discharge or release by or as a result of payment under such guarantee.
SECTION 4.18 Business of the Company; Restriction on Transfers of
----------------------------------------------------
Existing Business. The Company will not, and will not permit any Restricted
- -----------------
Subsidiary to, be principally engaged in any business or activity other than a
Permitted Business. In addition, the Company and any Restricted Subsidiary will
not be permitted, directly or indirectly, to transfer to any Unrestricted
Subsidiary (i) any of the licenses, permits or authorizations used in the
Permitted Business of the Company or any Restricted Subsidiary or (ii) any
material portion of the "property and equipment" (as such term is used in the
Company's consolidated financial statements) of the Company or any Restricted
Subsidiary used in the licensed service areas of the Company or any Restricted
Subsidiary.
SECTION 4.19 Limitation on the Issuance and Sale of Capital Stock of
-------------------------------------------------------
Restricted Subsidiaries. The Company will not, and will not permit any
- -----------------------
Restricted Subsidiary, directly or indirectly, to issue, transfer, convey, sell,
lease or otherwise dispose of any shares of Capital Stock (including options,
warrants or other rights to purchase shares of such Capital Stock) of such
Restricted Subsidiary or any other Restricted Subsidiary to any Person (other
than (i) to the Company or a Wholly Owned Restricted Subsidiary and (ii)
issuances of director's qualifying shares of Capital Stock of foreign Restricted
Subsidiaries, in each case, to the extent required by applicable law), unless
(A) the Net Cash Proceeds from such issuance, transfer, conveyance, sale, lease
or other disposition are applied in accordance with the provisions of Section
4.16, (B) immediately after giving effect to such issuance, transfer,
conveyance, sale, lease or other disposition, such Restricted Subsidiary would
no longer constitute a Restricted Subsidiary and (C) any Investment in such
Person remaining after giving effect to such issuance, transfer, conveyance,
sale, lease or other disposition would have been permitted to be made under
Section 4.3 if made on the date of such issuance, transfer, conveyance, sale,
lease or other disposition (valued as provided in the definition of "Investment"
in Section 1.1).
SECTION 4.20 Additional Amounts. At least 10 days prior to the first
-------------------
date on which payment of principal, premium, if any, or interest on the Notes is
to be made, and at least 10 days prior to any subsequent such date if there has
been any change with respect to the matters set forth in the Officers'
Certificate described in this Section 4.20, the Company will furnish the Trustee
and the Paying Agent, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and the Paying Agent whether such payment of principal,
premium, if any, or interest on the Notes (whether or not in the form of
Definitive Notes) shall be made to the Holders without withholding for or on
account of any present or future tax, duty, assessment or other governmental
charges of whatever nature (collectively "Taxes") imposed or levied by or on
-----
behalf of The Federal Republic of Germany or any jurisdiction in which the
Company or any Surviving Entity is organized or is otherwise resident for tax
purposes or any political subdivision thereof or any authority having power to
tax therein or any jurisdiction from or through which payment is made (each a
"Relevant Taxing Jurisdiction"), unless the withholding or deduction of such
- -----------------------------
Taxes is then required by law. If any deduction or withholding for, or on
account of, any Taxes of any Relevant Taxing Jurisdiction, shall at any time be
required on any
52
payments made by the Company with respect to the Notes, including payments of
principal, redemption price, interest or premium, then such Officers'
Certificate shall specify the amount, if any, required to be withheld on such
payments to such Holders and the Company will pay to the Trustee or the Paying
Agent the additional amounts pursuant to paragraph 3 of the Initial Notes and
paragraph 2 of the Exchange Notes, as applicable (the "Additional Amounts") and,
------------------
if paid to a Paying Agent other than the Trustee, shall provide the Trustee with
documentation satisfactory to the Trustee evidencing the payment of such
Additional Amounts. Copies of such documentation shall be made available to the
Holders upon request. The Company shall indemnify the Trustee and the Paying
Agent for, and hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished to them pursuant to this Section 4.20.
SECTION 4.21 Payment of Non-Income Taxes and Similar Charges. The
-----------------------------------------------
Company will pay any present or future stamp, court or documentary taxes, or any
other excise or property taxes, charges or similar levies which arise in any
jurisdiction from the execution, delivery or registration of the Notes or any
other document or instrument referred to therein, or the receipt of any payments
with respect to the Notes, excluding any such taxes, charges or similar levies
imposed by any jurisdiction outside of The Federal Republic of Germany, the
United States of America, or any jurisdiction in which a Paying Agent is
located, other than those resulting from, or required to be paid in connection
with, the enforcement of the Notes or any other such document or instrument
following the occurrence of any Event of Default with respect to the Notes.
SECTION 4.22 Restriction on Sale/Leaseback Transactions. The Company
------------------------------------------
will not, and will not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with respect to any property unless (a) the Company
or such Restricted Subsidiary would be entitled to (i) Incur Indebtedness in an
amount equal to the Attributable Debt with respect to such Sale/Leaseback
Transaction pursuant to Section 4.4 and (ii) create a Lien on such property
securing such Attributable Debt without equally and ratably securing the Notes
pursuant to Section 4.14, (b) the net cash proceeds received by the Company or
any Restricted Subsidiary in connection with such Sale/Leaseback Transaction are
at least equal to the fair value (as determined in good faith by the Board of
Directors) of such property and (c) the transfer of such property is permitted
by, and the Company applies the proceeds of such transaction in compliance with,
Section 4.16.
SECTION 4.23 Limitation on Investment Company Activities. The Company
-------------------------------------------
will not, and will not permit any of its Restricted Subsidiaries or controlled
Affiliates to, conduct its business in a fashion that would cause the Company to
be required to register as an "investment company" (as that term is defined in
the Investment Company Act of 1940, as amended (the "Investment Company Act")),
----------------------
or otherwise to become subject to regulation under the Investment Company Act.
For purposes of establishing the Company's compliance with this provision, any
exemption which is or would become available under Section 3(c)(1) or Section
3(c)(7) of the Investment Company Act will be disregarded.
53
ARTICLE V
SUCCESSOR CORPORATION
---------------------
SECTION 5.1 Consolidation, Merger, and Sale of Assets. The Company will
-----------------------------------------
not consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an entirety in one transaction or in a series of
related transactions) to, any Person or permit any Person to merge with or into
the Company and the Company will not permit any of its Restricted Subsidiaries
to enter into any such transaction or series of transactions if such transaction
or series of transactions, in the aggregate, would result in the sale,
assignment, conveyance, transfer, lease or other disposition of all or
substantially all of the properties and assets of the Company or the Company and
its Restricted Subsidiaries, taken as a whole, to any other Person or Persons,
unless: (i) the Company will be the continuing Person, or the Person (if other
than the Company) (the "Surviving Entity") formed by such consolidation or into
----------------
which the Company is merged or that acquired or leased such property and assets
of the Company will be a corporation organized and validly existing under the
laws of the United States of America, any state thereof or the District of
Columbia and shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Company with respect to
the Notes and under this Indenture and the Collateral Agreement; (ii)
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; (iii) immediately after giving
effect to such transaction on a pro forma basis, the Company, or any Person
becoming the successor obligor of the Notes, shall have a Consolidated Net Worth
equal to or greater than the Consolidated Net Worth of the Company immediately
prior to such transaction; (iv) immediately after giving effect to such
transaction on a pro forma basis the Company, or any Person becoming the
successor obligor of the Notes, as the case may be, could Incur at least C1.00
of Indebtedness under subsection 4.4(a); (v) the Company delivers to the Trustee
an Officers' Certificate (attaching the arithmetic computations to demonstrate
compliance with clauses (iii) and (iv) above) and an Opinion of Counsel, in each
case stating that such consolidation, merger or transfer and such supplemental
indenture complies with this Indenture; and (vi) the Company shall have
delivered to the Trustee an opinion of tax counsel reasonably acceptable to the
Trustee stating that (A) Holders will not recognize income, gain or loss for
U.S. federal or German income tax purposes as a result of such transaction, (B)
any payment of principal, redemption price or purchase price of, premium (if
any) and interest on the Notes by the Company to a Holder after the
consolidation, merger, conveyance, transfer or lease of assets will be exempt
from any Taxes and (C) no other taxes on income (including taxable capital
gains) will be payable under the tax laws of the Relevant Taxing Jurisdiction by
a Holder who is or who is deemed to be a non-resident of the Relevant Taxing
Jurisdiction in respect of the acquisition, ownership or disposition of the
Notes, including the receipt of principal of, premium and interest paid pursuant
to such Notes.
SECTION 5.2 Successor Corporation Substituted. Upon any such
---------------------------------
consolidation, merger, assignment, conveyance, lease, transfer or other
disposition in accordance with Section 5.1, the Successor Company will succeed
to, and be substituted for every duty and obligation of, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such Successor Company had been named as the Company herein, and thereafter
54
(except in the case of a sale, assignment, transfer, lease, conveyance or other
disposition) the predecessor corporation will be relieved of all further
obligations and covenants under this Indenture and the Notes.
ARTICLE VI
DEFAULT AND REMEDIES
--------------------
SECTION 6.1 Events of Default. Wherever used herein with respect to any
------------------
series of the Notes, "Event of Default" means any one of the following events
----------------
which shall have occurred and be continuing:
(a) a default for 30 days or more in the payment when due of interest on
the Notes or Additional Amounts, if any, or Liquidated Damages, if any,
with respect to the Notes;
(b) a default in the payment of principal of (or premium, if any, on)
any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(c) a default in the payment of principal or interest on Notes required
to be purchased pursuant to an Asset Sale Offer as described under Section
4.16 or pursuant to a Change of Control Offer as described under Section
4.15;
(d) a failure to perform or comply with the provisions described in
Article V;
(e) a default in the performance of or breach of any other covenant or
agreement of the Company in this Indenture or the Collateral Agreement or
under the Notes and such default or breach continues for a period of 30
consecutive days after written notice by the Trustee or the holders of 25%
or more in aggregate principal amount of the Notes;
(f) a default occurs on any other Indebtedness of the Company or any
Restricted Subsidiary if (i) either (x) such default is a failure to pay
principal of such Indebtedness when due after any applicable grace period
or (y) as a result of such default, the maturity of such Indebtedness has
been accelerated prior to its scheduled maturity and such default has not
been cured within the shorter of 30 days and the applicable grace period,
and such acceleration has not been rescinded and (ii) the principal amount
of such Indebtedness, together with the principal amount of any other
Indebtedness of the Company and its Restricted Subsidiaries that is also in
default as to principal, or the maturity of which has also been
accelerated, aggregates C5.0 million or more;
(g) failure to pay final judgments and orders against the Company or any
Restricted Subsidiary (not covered by insurance) aggregating in excess of
C5.0 million (treating any deductibles, self-insurance or retention as not
so covered), which final judgments remain unpaid, undischarged and unstayed
for a period in excess of 30 consecutive days following entry of the final
judgment or order that causes the aggregate amount for all such final
judgments or orders outstanding and not paid, discharged or stayed to
exceed C5.0 million;
55
(h) a court having jurisdiction in the premises enters a decree or order
for (A) relief in respect of the Company or any of its Significant
Subsidiaries in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B) appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or any of its Significant Subsidiaries or
for all or substantially all of the property and assets of the Company or
any of its Significant Subsidiaries or (C) the winding up or liquidation of
the affairs of the Company or any of its Significant Subsidiaries and, in
each case, such decree or order shall remain unstayed and in effect for a
period of 30 consecutive days;
(i) the Company or any of its Significant Subsidiaries (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
of its Significant Subsidiaries or for all or substantially all of the
property and assets of the Company or any of its Significant Subsidiaries
or (C) effects any general assignment for the benefit of creditors; or
(j) the Company challenges the Lien on the Collateral under the
Collateral Agreement prior to such time as the Collateral is to be released
to the Company, or the Collateral shall become subject to any Lien other
than the Lien under the Collateral Agreement.
SECTION 6.2 Acceleration. If an Event of Default (other than an Event
------------
of Default specified in Sections 6.1(h) or (i)) occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding, by written notice to the Company, may declare the
principal of, premium, if any, interest and other monetary obligations
(including Additional Amounts, if any, and Liquidated Damages, if any) on all
the then outstanding Notes to be immediately due and payable. Upon such a
declaration, such principal of, premium, if any, interest and other monetary
obligations on the Notes shall be immediately due and payable. In the event of
a declaration of acceleration because an Event of Default set forth in
subsection 6.1(f) above has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to subsection 6.1(f) shall be
remedied or cured by the Company and/or the relevant Restricted Subsidiaries or
waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default
specified in subsections 6.1(h) or (i) above occurs, the principal of, premium,
if any, accrued interest and other monetary obligations on the Notes then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
The Trustee shall have no obligation to accelerate the Notes if in the
best judgment of the Trustee acceleration is not in the best interest of the
Holders of such Notes.
SECTION 6.3 Other Remedies. If an Event of Default occurs and is
--------------
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the
56
payment of principal of or, premium, if any, interest, Additional Amounts, if
any, or Liquidated Damages, if any, on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
SECTION 6.4 The Trustee May Enforce Claims Without Possession of
----------------------------------------------------
Securities. All rights of action and claims under this Indenture or the Notes
- ----------
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto.
SECTION 6.5 Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes in Section 2.8, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Notes is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent or subsequent assertion or employment of any
other appropriate right or remedy.
SECTION 6.6 Delay or Omission Not Waiver. No delay or omission of the
----------------------------
Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders of Notes
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Notes.
SECTION 6.7 Waiver of Past Defaults. Subject to Sections 6.10 and 9.2,
-----------------------
at any time after a declaration of acceleration with respect to the Notes as
described in Section 6.1, the Holders of at least a majority in principal amount
of the outstanding Notes by written notice to the Company and to the Trustee,
may waive all past defaults and rescind and annul a declaration of acceleration
and its consequences if (i) all existing Events of Default, other than the
nonpayment of the principal of, premium, if any, interest and other monetary
obligations on the Notes that have become due solely by such declaration of
acceleration, have been cured or waived and (ii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction. Such
waiver shall not excuse a continuing Event of Default in the payment of
interest, premium, if any, principal, Additional Amounts, if any, or Liquidated
Damages, if any, on such Note held by a non-consenting Holder, or in respect of
a covenant or a provision which cannot be amended or modified without the
consent of all Holders. In the event of any Event of Default specified in
subsection 6.1(f), such Event of Default and all consequences thereof
(including, without limitation, any acceleration or resulting payment default)
shall be annulled, waived and rescinded, automatically and without any action by
the Trustee or the Holders of the Notes, if within 60 days after such Event of
Default arose (x) the Indebtedness or guarantee that is the basis for such Event
of Default has been discharged, or (y) the holders thereof have rescinded or
waived the acceleration, notice or action (as the case may be) giving rise to
such Event of Default, or (z) if the default that is the basis for such Event of
Default has been cured. The Company shall deliver to the Trustee an Officers'
Certificate stating
57
that the requisite percentage of Holders have consented to such waiver and
attaching copies of such consents. When a Default or Event of Default is waived,
it is cured and ceases.
SECTION 6.8 Control by Majority. Subject to Section 2.10, the Holders
-------------------
of not less than a majority in principal amount of the outstanding Notes may, by
written notice to the Trustee, direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it. Subject to Section 7.1, however, the Trustee may
refuse to follow any direction that conflicts with any law or this Indenture
that the Trustee determines may be unduly prejudicial to the rights of another
Holder of Notes, or that may involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 6.9 Limitation on Suits. A Holder of Notes may not pursue any
-------------------
remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(ii) the Holder or Holders of at least 25% in principal amount of the
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(iv) the Trustee does not comply with the request within 30 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(v) during such 30-day period the Holder or Holders of a majority in
principal amount of the outstanding Notes do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.10 Rights of Holders To Receive Payment. Notwithstanding any
------------------------------------
other provision of this Indenture, the right of any Holder to receive payment of
principal of, premium, if any, interest, Additional Amounts, if any and
Liquidated Damages, if any, on a Note, on or after the respective due dates
expressed in such Note, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.11 Collection Suit by Trustee. If an Event of Default in
--------------------------
payment of principal, premium, if any, interest, Additional Amounts, if any or
Liquidated Damages, if any, specified in subsection 6.1(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any other obligor on the Notes for the
whole amount of principal and accrued interest remaining unpaid, together with
58
interest on overdue principal and, to the extent that payment of such interest
is lawful, interest on overdue installments of interest, in each case at the
rate per annum borne by the Notes and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
SECTION 6.12 Trustee May File Proofs of Claim. The Trustee may file such
--------------------------------
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, accountants and experts) and the Holders allowed in any
judicial proceedings relating to the Company, its creditors or its property or
other obligor on the Notes, its creditors and its property and shall be entitled
and empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceedings is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee under Section 7.7. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Holders of the Notes may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
SECTION 6.13 Priorities. If the Trustee collects any money or property
----------
pursuant to this Article VI, it shall pay out the money or property in the
following order:
First: to the Trustee, the Agents and their agents and attorneys for
amounts due under Section 7.7, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, interest, Additional Amounts, if any and
Liquidated Damages, if any, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, interest, Additional Amounts, if any, and
Liquidated Damages, if any, respectively; and
Third: to the Company or any other obligor on the Notes, as their
interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior notice to the Company, may fix a record date and
payment date for any payment to Holders pursuant to this Section 6.13; provided
that the failure to give any such notice shall not affect the establishment of
such record date or payment date for Holders pursuant to this Section 6.13.
59
SECTION 6.14 Restoration of Rights and Remedies. If the Trustee or any
----------------------------------
Holder of any Note has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders of Notes shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders of Notes shall continue as though no
such proceeding had been instituted.
SECTION 6.15 Undertaking for Costs. In any suit for the enforcement of
---------------------
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.15 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.10, or a suit
by a Holder or Holders of more than 10% in principal amount of the outstanding
Notes.
SECTION 6.16 Compliance Certificate; Notices of Default. The Company is
------------------------------------------
required to deliver to the Trustee annually a statement, in the form of an
Officers' Certificate, regarding compliance with this Indenture, and the Company
is required, within five Business Days, upon becoming aware of any Default or
Event of Default or any default under any document, instrument or agreement
representing Indebtedness of the Company, to deliver to the Trustee a statement,
in the form of an Officers' Certificate, specifying such Default or Event of
Default.
ARTICLE VII
TRUSTEE
-------
SECTION 7.1 Duties of Trustee. (a) If an Event of Default actually
-----------------
known to a Trust Officer of the Trustee has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs. Subject to such provisions, the Trustee will be under
no obligation to exercise any of its rights or powers under this Indenture at
the request of any of the Holders of Notes, unless they shall have offered to
the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(b) Except during the continuance of an Event of Default actually known
to the Trustee:
(i) The Trustee and the Agents will perform only those duties as are
specifically set forth herein and no others and no implied covenants or
obligations shall be read into this Indenture against the Trustee or the
Agents.
60
(ii) In the absence of bad faith on their part, the Trustee and the
Agents may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions and such other documents delivered to the Trustee and conforming
to the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are required to be
furnished to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) This paragraph does not limit the effect of subsection (b) of
this Section 7.1.
(ii) Neither the Trustee nor Agent shall be liable for any error
of judgment made in good faith by a Trust Officer of such Trustee or
Agent, unless it is proved that the Trustee or such Agent was
negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.8.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or to take or omit to take any action under this
Indenture or take any action at the request or direction of Holders if it shall
have reasonable grounds for believing that repayment of such funds is not
assured to it or it does not receive an indemnity satisfactory to it in its sole
discretion against such risk, liability, loss, fee or expense which might be
incurred by it in compliance with such request or direction.
(e) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to subsections (a),
(b), (c) and (d) of this Section 7.1.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) Any provision hereof relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.1 and, upon qualification of this Indenture under
the TIA, the TIA.
SECTION 7.2 Rights of Trustee. Subject to Section 7.1:
-----------------
(a) The Trustee and each Agent may rely conclusively on and shall be
protected from acting or refraining from acting based upon any document
believed by the Trustee or each
61
Agent them to be genuine and to have been signed or presented by the proper
person. Neither the Trustee nor any Agent shall be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent order, approval, appraisal, bond, debenture, note, coupon, security
or other paper or document, but the Trustee or the Agent, as the case may
be, in its discretion, may make reasonable further inquiry or investigation
into such facts or matters stated in such document and if the Trustee or
the Agent as the case may be, shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, at reasonable times during normal business hours,
personally or by agent or attorney and the Trustee and the Agent shall
incur no liability or additional liability of any kind by reason of such
inquiry or investigation. The Trustee shall not be deemed to have notice or
any knowledge of any matter (including without limitation Defaults or
Events of Default) unless a Trust Officer assigned to and working in the
Trustee's Corporate Trust Administration has actual knowledge thereof or
unless written notice thereof is received by the Trustee, attention:
Corporate Trust Administration and such notice references the Notes
generally, the Company or this Indenture;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or
Company Order and any resolution of the Board of Directors of the Company,
as the case may be, may be sufficiently evidenced by a Board Resolution;
(c) Before the Trustee and any Agent acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both, which
shall conform to the provisions of Sections 11.4 and 11.5. Neither the
Trustee nor any Agent shall be liable for any action it takes or omits to
take in good faith in reliance on such certificate or opinion.
(d) The Trustee and any Agent may act through their attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
or attorney appointed with due care.
(e) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within
its rights or powers conferred upon it by this Indenture; provided,
however, that the Trustee's conduct does not constitute willful misconduct,
negligence or bad faith.
(f) The Trustee or any Agent may consult with counsel of its selection
and the advice or opinion of such counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(g) Subject to Section 9.2 hereof, the Trustee may (but shall not be
obligated to), without the consent of the Holders, give any consent, waiver
or approval required by the terms hereof, but shall not without the consent
of the Holders of not less than a majority
62
in aggregate principal amount of the Notes at the time outstanding (i) give
any consent, waiver or approval or (ii) agree to any amendment or
modification of this Indenture, in each case, that shall have a material
adverse effect on the interests of any Holder. The Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with
respect to whether any consent, waiver, approval, amendment or modification
shall have a material adverse effect on the interests of any Holder.
(h) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder or in connection with the transactions
contemplated hereby.
SECTION 7.3 Individual Rights of Trustee. The Trustee in its individual
----------------------------
or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company, its Subsidiaries, or their respective Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. The Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer. The Trustee and the Agents shall not
--------------------
be responsible for and make no representation as to the validity, effectiveness
or adequacy of this Indenture or the Notes; the Trustee and the Agents shall not
be accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company or upon the Company's direction under
any provision hereof; the Trustee shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee;
and the Trustee and the Agents shall not be responsible for any statement or
recital herein of the Company, or any document issued in connection with the
sale of Notes or any statement in the Notes other than the Trustee's certificate
of authentication.
SECTION 7.5 Notice of Default. If an Event of Default occurs and is
-----------------
continuing and a Trust Officer of the Trustee receives actual notice of such
event, the Trustee shall mail to each Holder, as their names and addresses
appear on the list of Holders described in Section 2.5, notice of the uncured
Default or Event of Default within 90 days after the Trustee receives such
notice. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, interest, Additional Amounts, if any, or
Liquidated Damages, if any, on any Note, including the failure to make payment
on (i) the Change of Control Payment Date pursuant to a Change of Control Offer
or (ii) the Asset Sale Purchase Date pursuant to an Asset Sale Offer, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the interest
of the Holders.
SECTION 7.6 Report by Trustee to Holders. This Section 7.6 shall not be
----------------------------
operative as a part of this Indenture until this Indenture is qualified under
the TIA, and, until such qualification, this Indenture shall be construed as if
this Section 7.6 were not contained herein.
Within 60 days after each June 15 beginning with June 15, 2000, the
Trustee shall, to the extent that any of the events described in TIA Section
313(a) occurred within the previous
63
twelve months, but not otherwise, mail to each Holder a brief report dated as of
such date that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Sections 313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the Commission and each securities
exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if subsequent to the date
hereof the Notes become listed on any securities exchange or of any delisting
thereof.
SECTION 7.7 Compensation and Indemnity. The Company shall pay to the
--------------------------
Trustee from time to time such compensation as the Company and the Trustee shall
from time to time agree in writing for its acceptance of this Indenture and
services hereunder. The Trustee's and the Agents' compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee and the Agents upon request for all
reasonable disbursements, expenses and advances (including reasonable fees and
expenses of counsel) incurred or made by it in addition to the compensation for
their services, except any such disbursements, expenses and advances as may be
attributable to the Trustee's or any Agent's negligence or bad faith. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's and Agents' accountants, experts and counsel and any taxes or
other expenses incurred by a trust created pursuant to Section 8.4 hereof.
The Company shall indemnify each of the Trustee, any predecessor Trustee
and the Agents for, and hold them harmless against, any and all loss, damage,
claim, expense or liability including taxes (other than taxes based on the
income of the Trustee) incurred by the Trustee or an Agent without negligence,
willful misconduct or bad faith on its part in connection with the acceptance or
administration of this trust and its duties under this Indenture and the
Collateral Agreement and the Unit Agreement, including the reasonable expenses
and attorneys' fees and expenses of defending itself against any claim or
liability arising hereunder. The Trustee and the Agents shall notify the
Company promptly of any claim asserted against the Trustee or such Agent for
which it may seek indemnity. However, the failure by the Trustee or the Agent
to so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee or such Agent
shall cooperate in the defense (and may employ its own counsel reasonably
satisfactory to the Trustee) at the Company's expense. The Trustee or such
Agent may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its written consent, which consent shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee or such Agent as a result of the violation of
this Indenture by the Trustee or such Agent if such violation arose from the
Trustee's or such Agent's negligence or bad faith.
To secure the Company's payment obligations in this Section 7.7, the
Trustee and the Agents shall have a senior Lien prior to the Notes against all
money or property held or collected by the Trustee and the Agents, in its
capacity as Trustee or Agent, except money or property held
64
in trust to pay principal or premium, if any, or interest on particular Notes
and except for any assets held in the Collateral Account.
When the Trustee or an Agent incurs expenses or renders services after
the occurrence of an Event of Default specified in subsection 6.1(h) or (i), the
expenses (including the reasonable fees and expenses of its agents and counsel)
and the compensation for the services shall be preferred over the status of the
Holders in a proceeding under any Bankruptcy Law and are intended to constitute
expenses of administration under any Bankruptcy Law. The Company's obligations
under this Section 7.7 and any claim arising hereunder shall survive the
termination of this Indenture, the resignation or removal of any Trustee or
Agent, the discharge of the Company's obligations pursuant to Article VIII and
any rejection or termination under any Bankruptcy Law.
The provisions of this Section 7.7 shall survive the termination of this
Indenture.
SECTION 7.8 Replacement of Trustee. The Trustee may resign at any time
----------------------
by so notifying the Company in writing. The Holders of a majority in principal
amount of the outstanding Notes may remove the Trustee by so notifying the
Company and the Trustee in writing and may appoint a successor trustee with the
Company's consent. A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this section. The Company may remove
the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii) a receiver or other public officer takes charge of the Trustee or
its property; or
(iv) the Trustee becomes incapable of acting with respect to its duties
hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall notify each Holder of such event
and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the then outstanding Notes may, with the Company's consent, appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the
retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.7, all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
65
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee after written request by any Holder who has been a Holder
for at least six months fails to comply with Section 7.10, such Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee and the Company shall pay to any replaced or removed
Trustee all amounts owed under Section 7.7 upon such replacement or removal.
SECTION 7.9 Successor Trustee by Merger, etc. If the Trustee
--------------------------------
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee. In case any Notes shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by consolidation, merger or conversion to such authenticating Trustee
may adopt such authentication and deliver the Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated such Notes.
SECTION 7.10 Corporate Trustee Required; Eligibility. There shall be at
---------------------------------------
all times a Trustee hereunder which shall be eligible to act as Trustee under
the TIA and shall have a combined capital and surplus of at least $50,000,000
and have its Corporate Trust Office in the Borough of Manhattan, The City of New
York. If such Person publishes reports of condition at least annually, pursuant
to law or to the requirements of a Federal, State or District of Columbia
supervising or examining authority within the United States of America, then for
the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
SECTION 7.11 Disqualification; Conflicting Interests. If the Trustee has
---------------------------------------
or shall acquire a conflicting interest within the meaning of the TIA, the
Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the TIA and this
Indenture.
SECTION 7.12 Preferential Collection of Claims Against Company. The
-------------------------------------------------
Trustee, in its capacity as Trustee hereunder, shall comply with TIA Section
311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated.
66
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
---------------------------------------
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance.
--------------------------------------------------------
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, with respect to
the Notes, elect to have either Section 8.2 or 8.3 be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article VIII.
SECTION 8.2 Legal Defeasance and Discharge. Upon the Company's exercise
------------------------------
under Section 8.1 of the option applicable to this Section 8.2, the Company
shall be deemed to have been discharged from its obligations with respect to all
outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance
----------------
means that the Company shall be deemed to have paid and discharged all the
Obligations relating to the outstanding Notes and the Notes shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.6, Section 8.8 and
the other Sections of this Indenture referred to below in this Section 8.2, and
to have satisfied all of their other obligations under such Notes and this
Indenture and cured all then existing Events of Default (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive payments in respect of the principal of, premium,
if any, interest, Additional Amounts, if any, and Liquidated Damages, if any, on
such Notes when such payments are due or on the Redemption Date solely out of
the trust created pursuant to this Indenture; (b) the Company's obligations with
respect to Notes concerning issuing temporary Notes, or, where relevant,
registration of such Notes, mutilated, destroyed, lost or stolen Notes and the
maintenance of an office or agency for payment and money for security payments
held in trust; (c) the rights, powers, trusts, duties and immunities of the
Trustee, and the Company's obligations in connection therewith; and (d) this
Article VIII and the obligations set forth in Section 8.6 hereof.
Subject to compliance with this Article VIII, the Company may exercise
its option under Section 8.2 notwithstanding the prior exercise of its option
under Section 8.3 with respect to the Notes.
SECTION 8.3 Covenant Defeasance. Upon the Company's exercise under
-------------------
Section 8.1 of the option applicable to this Section 8.3, the Company shall be
released from any obligations under the covenants contained in Sections 4.3,
4.4, 4.10, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.22, 4.23 and 5.1
hereof with respect to the outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
-------------------
and the Notes shall thereafter be deemed not "outstanding" for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term,
67
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or Event of Default under subsection 6.1(e), nor shall any event referred to in
subsection 6.1(f) or (g) thereafter constitute a Default or Event of Default,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby.
SECTION 8.4 Conditions to Legal or Covenant Defeasance. The following
-------------------------------------------
shall be the conditions to the application of either Section 8.2 or Section 8.3
to the outstanding Notes:
(i) the Company must irrevocably deposit, or cause to be irrevocably
deposited, with the Trustee, in trust, for the benefit of the Holders of
the Notes, cash in U.S. dollars, Government Securities or a combination
thereof in such amounts as will be sufficient, in the opinion of an
internationally recognized firm of independent public accountants, to pay
the principal of, premium, if any, interest, Additional Amounts, if any,
and Liquidated Damages, if any, due on the outstanding Notes on the stated
maturity date or on the applicable Redemption Date, as the case may be, of
such principal, premium, if any, interest, Additional Amounts, if any, and
Liquidated Damages, if any, due on the outstanding Notes;
(ii) in the case of Legal Defeasance, the Company shall have delivered to
the Trustee (A) an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that, subject to customary assumptions
and exclusions, (1) the Company has received from, or there has been
published by, the U.S. Internal Revenue Service a ruling or (2) since the
Issue Date, there has been a change in the applicable U.S. federal income
tax law, in either case to the effect that, and based thereon such Opinion
of Counsel in the United States shall confirm that, subject to customary
assumptions and exclusions, the Holders of the outstanding Notes will not
recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Legal Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred and (B) an
Opinion of Counsel in The Federal Republic of Germany reasonably acceptable
to the Trustee to the effect that (1) Holders will not recognize income,
gain or loss for German income tax purposes as a result of such Legal
Defeasance and will be subject to German income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
Legal Defeasance had not occurred and (2) payments from the defeasance
trust will be free and exempt from any and all withholding and other income
taxes of whatever nature imposed or levied by or on behalf of the German
government or any political subdivision thereof or therein having the power
to tax;
(iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee (A) an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that, subject to customary
assumptions and exclusions, the Holders of the outstanding Notes will not
recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Covenant Defeasance and will be subject to such tax on the
68
same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred and (B) an Opinion of
Counsel in The Federal Republic of Germany reasonably acceptable to the
Trustee to the effect that (1) Holders will not recognize income, gain or
loss for German income tax purposes as a result of such Covenant Defeasance
and will be subject to German income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred and (2) payments from the defeasance trust will
be free and exempt from any and all withholding and other income taxes of
whatever nature imposed or levied by or on behalf of the German government
or any political subdivision thereof or therein having the power to tax;
(iv) no Default or Event of Default shall have occurred and be continuing
with respect to certain Events of Default on the date of such deposit;
(v) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under any material
agreement or instrument to which the Company is a party or by which the
Company is bound;
(vi) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, as of the date of such opinion and subject to
customary assumptions and exclusions following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally under
any applicable German law or U.S. federal or state law, and that the
Trustee has a perfected security interest in such trust funds for the
ratable benefit of the Holders;
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of defeating, hindering, delaying or defrauding any creditors of the
Company or others; and
(viii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States (which opinion
of counsel may be subject to customary assumptions and exclusions) each
stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance, as the case may be, have been
complied with.
SECTION 8.5 Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
will be discharged and will cease to be of further effect as to all Notes issued
thereunder when either (i) all such Notes theretofore authenticated and
delivered (except lost, stolen or destroyed Notes which have been replaced or
paid and Notes for whose payment money has theretofore been deposited in trust
and thereafter repaid to the Company) have been delivered to the Trustee for
cancellation or (ii) (A) all such Notes not theretofore delivered to such
Trustee for cancellation have become due and payable by reason of the making of
a notice of redemption or otherwise or will become due and payable within one
year and the Company has irrevocably deposited or caused to be deposited with
such Trustee as trust funds in trust an amount of money sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to the
Trustee
69
for cancellation for principal, premium, if any, and accrued and unpaid
interest, Additional Amounts, if any, and Liquidated Damages, if any, to the
date of maturity or redemption; (B) no Default with respect to this Indenture or
the Notes shall have occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to
which the Company is a party or by which it is bound; (C) the Company has paid,
or caused to be paid, all sums payable by it under this Indenture; and (D) the
Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of such Notes at
maturity or the Redemption Date, as the case may be. In addition, the Company
must deliver an Officers' Certificate and an Opinion of Counsel to the Trustee
stating that all conditions precedent to satisfaction and discharge have been
satisfied.
SECTION 8.6 Survival of Certain Obligations. Notwithstanding the
-------------------------------
satisfaction and discharge of this Indenture and of the Notes referred to in
Section 8.1, 8.2, 8.3, 8.4 or 8.5, the respective obligations of the Company and
the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.10, 2.11, 2.12, 2.13,
2.14, 4.1, 4.2, 4.5, 4.21, 6.10, Article VII, 8.7, 8.8, 8.9 and 8.10 shall
survive until the Notes are no longer outstanding, and thereafter the
obligations of the Company and the Trustee under Sections 7.7, 8.7, 8.8, 8.9 and
8.10 shall survive. Nothing contained in this Article VIII shall abrogate any
of the obligations or duties of the Trustee under this Indenture.
SECTION 8.7 Acknowledgment of Discharge by Trustee. Subject to Section
--------------------------------------
8.10, after (i) the conditions of Section 8.4 or 8.5 have been satisfied, (ii)
the Company has paid or caused to be paid all other sums payable hereunder by
the Company and (iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent referred to in clause (i) above relating to the satisfaction and
discharge of this Indenture have been complied with, the Trustee upon written
request shall acknowledge in writing the discharge of all of the Company's
obligations under this Indenture except for those surviving obligations
specified in this Article VIII.
SECTION 8.8 Application of Trust Moneys. All cash in U.S. dollars and
---------------------------
Government Securities deposited with the Trustee pursuant to Section 8.4 or 8.5
in respect of Notes shall be held in trust and applied by it, in accordance with
the provisions of such Notes and this Indenture, to the payment, either directly
or through any Paying Agent as the Trustee may determine, to the Holders of the
Notes of all sums due and to become due thereon for principal, premium, if any,
interest, Additional Amounts, if any, and Liquidated Damages, if any, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Securities deposited
pursuant to Section 8.4 or 8.5 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of outstanding Notes.
SECTION 8.9 Repayment to the Company; Unclaimed Money. The Trustee and
-----------------------------------------
any Paying Agent shall promptly pay or return to the Company upon Company Order
any cash or Government Securities held by them at any time that are not required
for the payment of the principal of, premium, if any, interest, Additional
Amounts, if any, and Liquidated Damages, if
70
any, on the Notes for which cash or Government Securities have been deposited
pursuant to Section 8.4 or 8.5.
Any money held by the Trustee or any Paying Agent under this Article, in
trust for the payment of the principal of, premium, if any, interest, Additional
Amounts, if any, and Liquidated Damages, if any, on any Note and remaining
unclaimed for two years after such principal, premium, if any, interest,
Additional Amounts, if any, and Liquidated Damages, if any, has become due and
payable shall be paid to the Company upon Company Order or if then held by the
Company shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company give notice to the Holders or cause to be
published notice once, in a leading newspaper having a general circulation in
New York (which is expected to be The Wall Street Journal) and in Frankfurt
(which is expected to be the Frankfurter Allgemeine Zeitung) (and, if and so
long as the Notes are listed on the Luxembourg Stock Exchange and the rules of
such stock exchange shall so require, a newspaper having a general circulation
in Luxembourg (which is expected to be the Luxemburger Wort)) or in the case of
Definitive Notes, mail to Holders by first-class mail, postage prepaid, at their
respective addresses as they appear on the registration books of the Registrar
(and, if and so long as the Notes are listed on the Luxembourg Stock Exchange
and the rules of such Stock Exchange shall so require, publish in a newspaper
having a general circulation in Luxembourg (which is expected to be the
Luxemburger Wort)), that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 8.10 Reinstatement. If the Trustee or Paying Agent is unable to
-------------
apply any cash or Government Securities, as applicable, in accordance with
Section 8.2, 8.3, 8.4 or 8.5 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2, 8.3, 8.4 or 8.5 until such time as
the Trustee or Paying Agent is permitted to apply all such cash or Government
Securities in accordance with Section 8.2, 8.3, 8.4 or 8.5; provided, however,
that if the Company has made any payment of interest on, premium, if any,
principal, Additional Amounts, if any, and Liquidated Damages, if any, of any
Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities, as applicable, held by the Trustee or
Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
-----------------------------------
SECTION 9.1 Without Consent of Holders of Notes. Notwithstanding
-----------------------------------
Section 9.2 hereof, the Company and the Trustee together may amend or supplement
this Indenture or the Notes without the consent of any Holder of a Note (i) to
cure any ambiguity, omission, defect or
71
inconsistency, (ii) to provide for uncertificated Notes in addition to or in
place of certificated Notes, or to provide for additional forms of global Notes
containing transfer and other restrictions and which comply with applicable U.S.
securities and other laws, (iii) to comply with the covenant relating to
mergers, consolidations and sales of assets, (iv) to provide for the assumption
of the Company's obligations to Holders of such Notes, (v) to make any change
that would provide any additional rights or benefits to the Holders of the Notes
or that does not adversely affect the legal rights under this Indenture of any
such Holder, (vi) to add covenants for the benefit of the Holders or to
surrender any right or power conferred upon the Company, (vii) to comply with
requirements of the Commission in order to effect or maintain the qualification
of this Indenture under the TIA, or (viii) to execute and deliver any documents
necessary or appropriate to release Liens on any Collateral as permitted by the
Collateral Agreement.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such amendment or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 9.6, the
Trustee shall join with the Company in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental indenture which adversely affects its own rights, duties
or immunities hereunder or otherwise.
SECTION 9.2 With Consent of Holders of Notes. The Company and the
--------------------------------
Trustee may amend or supplement this Indenture or the Notes or any amended or
supplemental indenture with the written consent of the Holders of at least a
majority in principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes), and
any existing Default or Event of Default and its consequences or compliance with
any provision of this Indenture or the Notes may be waived with the consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Notes). However, without the consent of each Holder
affected, an amendment or waiver may not (with respect to any Notes held by a
nonconsenting Holder of Notes): (i) reduce the principal amount of the Notes
whose Holders must consent to an amendment, supplement or waiver, (ii) reduce
the principal of or change the fixed maturity of any such Note or alter or waive
the provisions with respect to the redemption of the Notes, (iii) reduce the
rate of or change the time for payment of interest on any Note, (iv) waive a
Default in the payment of principal of, or premium, if any, interest, Additional
Amounts or Liquidated Damages, if any, on, the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted
from such acceleration with respect to the Notes) or in respect of a covenant or
provision contained in this Indenture which cannot be amended or modified
without the consent of all Holders, (v) make any Note payable in money other
than that stated in the Notes, (vi) make any change in the provisions of this
Indenture relating to waivers of past Defaults or the rights of Holders of the
Notes to receive payments of principal of, premium, interest, Additional
Amounts, if any, or Liquidated Damages, if any, on, such Notes, (vii) make any
change in the amendment and waiver provisions contained in this Indenture,
(viii) make any change in paragraph 3 of the Initial Notes or paragraph 2 of the
Exchange Notes that adversely affects the rights of any Holder of the Notes,
(ix) amend the terms of the Notes or
72
this Indenture in a way that would result in the loss of an exemption from any
Taxes or an exemption from any obligation to withhold or deduct Taxes unless the
Company agrees to pay Additional Amounts, if any, in respect thereof, (x) modify
the provisions of the Collateral Agreement or this Indenture relating to the
Collateral in any manner adverse to the Holders or release the Collateral from
the Lien under the Collateral Agreement or permit any other obligation to be
secured by the Collateral or (xi) impair the right of any Holder of the Notes to
receive payment of principal of, interest and Liquidated Damages, if any, on,
such Holder's Notes on or after the due dates therefor or to institute suit for
the enforcement of any payment on or with respect to such Holder's Notes.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 9.6, the Trustee shall join with the Company
in the execution of such amended or supplemental indenture unless such amended
or supplemental indenture adversely affects the Trustee's own rights, duties or
immunities hereunder or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.2 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver.
SECTION 9.3 Compliance with TIA. From the date on which this Indenture
-------------------
is qualified under the TIA, every amendment, waiver or supplement of this
Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 9.4 Revocation and Effect of Consents. Until an amendment,
---------------------------------
supplement or waiver becomes effective, a consent to it by a Holder of a Note is
a continuing consent by the Holder of a Note and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a Note may revoke the
consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An
amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every Holder of a Note.
The Company may fix a record date for determining which Holders of the
Notes must consent to such amendment, supplement or waiver. If the Company
fixes a record date, the record date shall be fixed at (i) the later of 30 days
prior to the first solicitation of such consent or
73
the date of the most recent list of Holders of Notes furnished to the Trustee
prior to such solicitation pursuant to Section 2.5 or (ii) such other date as
the Company shall designate.
SECTION 9.5 Notation on or Exchange of Notes. The Trustee may place an
--------------------------------
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall authenticate new Notes that reflect the amendment, supplement
or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.6 Trustee to Sign Amendments, etc. The Trustee shall execute
-------------------------------
any amendment, supplement or waiver authorized pursuant to this Article IX;
provided, however, that the Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver which adversely affects the Trustee's
own rights, duties or immunities under this Indenture. The Trustee shall be
entitled to receive indemnity reasonably satisfactory to it, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article IX is authorized or permitted by this
Indenture and constitutes the legal, valid and binding obligations of the
Company enforceable in accordance with its terms. Such Opinion of Counsel shall
not be an expense of the Trustee.
ARTICLE X
COLLATERAL AND SECURITY
-----------------------
SECTION 10.1 Collateral Agreement. The due and punctual payment of the
--------------------
principal of and interest on the Notes when and as the same shall be due and
payable, whether on an Interest Payment Date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of
and interest (to the extent permitted by law), if any, on such Notes and
performance of all other obligations of the Company to the Holders of such Notes
or the Trustee under this Indenture with respect to such Notes, and each of the
Notes, according to the terms hereunder or thereunder, shall be secured as
provided in the Collateral Agreement which the Company, the Collateral Agent and
the Trustee have entered into simultaneously with the execution of this
Indenture. Each Holder of each Note, by its acceptance thereof, consents and
agrees to the terms of the Collateral Agreement (including, without limitation,
the provisions providing for foreclosure and disbursement of Collateral) as the
same may be in effect or may be amended from time to time in accordance with its
terms and authorizes and directs the Collateral Agent and the Trustee to enter
into the Collateral Agreement and to perform its obligations and exercise its
rights thereunder in accordance therewith. The Company shall deliver to the
Trustee copies of the Collateral Agreement, and shall do or cause to be done all
such acts and things as may be necessary or proper, or as may be required by the
provisions of the Collateral Agreement, to assure and confirm to the Trustee
(acting on behalf of the Holders of the Notes) the security interest in the
Collateral with respect to the Notes contemplated by the Collateral Agreement or
any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture with respect to, and
of, such Notes, according to the intent
74
and purposes expressed in the Collateral Agreement. The Company shall take any
and all actions reasonably required to cause the Collateral Agreement to create
and maintain (to the extent possible under applicable law), as security for the
obligations of the Company hereunder, a valid and enforceable perfected first
priority Lien in and on all the Collateral with respect to the Notes, in favor
of the Trustee (acting on behalf of the Holders of the Notes) for the benefit of
the Holders of such Notes, superior to and prior to the rights of all third
Persons and subject to no other Liens.
SECTION 10.2 Recording and Opinions. (a) The Company shall furnish to
----------------------
the Trustee simultaneously with the execution and delivery of this Indenture an
Opinion of Counsel stating that, in the opinion of such counsel, either (i) all
action has been taken with respect to the recording, registering and filing of
this Indenture, financing statements or other instruments necessary to make
effective the Lien intended to be created by the Collateral Agreement, and
reciting with respect to the security interests in the Collateral, the details
of such action, or (ii) no such action is necessary to make such Lien effective.
(b) The Company shall furnish to the Collateral Agent and the Trustee
within 90 days of, and of each anniversary of, July 8, 1999, until the date upon
which the balance of Available Funds (as defined in the Collateral Agreement)
shall have been reduced to zero, an Opinion of Counsel, dated as of such date,
either (i) stating that (A) in the opinion of such counsel, action has been
taken with respect to the recording, registering, filing, re-recording, re-
registering and refiling of all supplemental indentures, financing statements,
continuation statements or other instruments of further assurance as is
necessary, if any, to maintain the Lien of the Collateral Agreement and reciting
with respect to the security interests in the Collateral the details of such
action or referring to prior Opinions of Counsel in which such details are given
and (B) based on relevant laws as in effect on the date of such Opinion of
Counsel, all financing statements and continuation statements have been executed
and filed that are necessary as of such date and during the succeeding 12 months
fully to preserve and protect, to the extent such protection and preservation
are possible by filing, the rights of the Holders of the Notes and the Trustee
hereunder and under the Collateral Agreement with respect to the security
interests in the Collateral with respect to such Notes or (ii) stating that, in
the opinion of such counsel, no such action is necessary to maintain such Lien
and assignment.
SECTION 10.3 Release of Collateral. (a) Subject to subsections (b), (c)
---------------------
and (d) of this Section 10.3, Collateral may be released from the Lien and
security interest created by the Collateral Agreement only in accordance with
the provisions of the Collateral Agreement.
(b) Except to the extent that any Lien on proceeds of Collateral is
automatically released by operation of Section 9-306 of the Uniform Commercial
Code or other similar law, no Collateral shall be released from the Lien and
security interest created by the Collateral Agreement pursuant to the provisions
of the Collateral Agreement, other than pursuant to the terms thereof, unless
there shall have been delivered to the Trustee the certificate required by
Section 10.3(d) and Section 10.4.
(c) At any time when an Event of Default shall have occurred and be
continuing and the maturity of the Notes issued on the Issuance Date shall have
been accelerated (whether by
75
declaration or otherwise), no Collateral shall be released pursuant to the
provisions of the Collateral Agreement, and no release of Collateral in
contravention of this Section 10.3(c) shall be effective as against the Holders
of Notes, except for the disbursement of all Available Funds (as defined in the
Collateral Agreement) to the Trustee pursuant to Section 6(c) of the Collateral
Agreement.
(d) The release of any Collateral from the Liens and security interests
created by the Collateral Agreement shall not be deemed to impair the security
under the Collateral Agreement in contravention of the provisions hereof if and
to the extent the Collateral is released pursuant to the terms hereof or,
subject to complying with the requirements of this Section 10.3, and Section
10.4 pursuant to the terms of the Collateral Agreement. To the extent
applicable, the Company shall cause Section 314(d) of the TIA relating to the
release of property or securities from the Lien and security interest of the
Collateral Agreement to be complied with. Any certificate or opinion required
by Section 314(d) of the TIA may be made by an Officer of the Company except in
cases where Section 314(d) of the TIA requires that such certificate or opinion
be made by an independent Person, which Person shall be an independent engineer,
appraiser or other expert selected by the Company.
SECTION 10.4 Certificates of the Company. The Company shall furnish to
---------------------------
the Trustee, prior to any proposed release of the Collateral other than pursuant
to the express terms of the Collateral Agreement, (i) all documents required by
Section 314(d) of the TIA and (ii) an Opinion of Counsel, which may be rendered
by internal counsel to the Company, to the effect that such accompanying
documents constitute all documents required by Section 314(d) of the TIA. The
Trustee may, to the extent permitted by Sections 7.1 and 7.2, accept as
conclusive evidence of compliance with the foregoing provisions the appropriate
statements contained in such documents and such Opinion of Counsel.
SECTION 10.5 Authorization of Actions to Be Taken by the Trustee Under
---------------------------------------------------------
the Collateral Agreement. Subject to the provisions of Sections 7.1 and 7.2,
- ------------------------
the Trustee upon the written direction of the Holders of majority in principal
amount of the Notes then outstanding may in the name and on behalf of the
Holders of such Notes, take all actions as so directed in order to (a) enforce
any of the terms of the Collateral Agreement and (b) collect and receive any and
all amounts payable in respect of the obligations of the Company hereunder. The
Trustee shall have power to institute and maintain such suits and proceedings as
directed to prevent any impairment of the Collateral by any acts that may be
unlawful or in violation of the Collateral Agreement or this Indenture, and to
preserve or protect its interests and the interests of the Holders of the Notes
in the Collateral with respect to such Notes (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders of such Notes or of the Trustee).
SECTION 10.6 Authorization of Receipt of Funds by the Trustee Under the
----------------------------------------------------------
Collateral Agreement. The Trustee is authorized to receive any funds for the
- --------------------
benefit of the
76
Holders of Notes disbursed under the Collateral Agreement, and to make further
distributions of such funds to the Holders of Notes according to the provisions
of this Indenture.
SECTION 10.7 Termination of Security Interest. Upon the earliest to
--------------------------------
occur of (i) the date upon which the balance of Available Funds shall have been
reduced to zero, (ii) the payment in full of all obligations of the Company
under this Indenture and the Notes, (iii) Legal Defeasance pursuant to Section
8.2 and (iv) Covenant Defeasance pursuant to Section 8.3, the Trustee shall, at
the written request of the Company, release the Liens pursuant to the Collateral
Agreement upon the Company's compliance with the provisions of the TIA
pertaining to release of collateral.
The Trustee shall not be responsible for filing any financing or
continuation statements or recording any documents or instruments in any public
office at any time or times or otherwise perfecting or maintaining the
perfection of any security interest in the Collateral.
The Trustee shall not be responsible for the existence, genuineness or
value of any of the Collateral or for the validity, perfection, priority or
enforceability of the Liens in any of the Collateral, whether impaired by
operation of law or by reason of any action or omission to act on its part
hereunder, except to the extent such action or omission constitutes gross
negligence, bad faith or willful misconduct on the part of the Trustee, for the
validity or sufficiency of the Collateral or any agreement or assignment
contained therein, for the validity of the title of the Company to the
Collateral, for insuring the Collateral or for the payment of taxes, charges,
assessments or Liens upon the Collateral or otherwise as to the maintenance of
the Collateral.
ARTICLE XI
MISCELLANEOUS
-------------
SECTION 11.1 TIA Controls. If any provision of this Indenture limits,
------------
qualifies, or conflicts with the duties imposed by operation of Section 3.18(c)
of the TIA, the imposed duties shall control.
SECTION 11.2 Notices. Any notices or other communications required or
-------
permitted hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, by telecopier or first-class mail, postage prepaid, addressed
as follows:
if to the Company:
Cybernet Internet Services
International, Inc.
Stefan-George-Ring 19-23
D-81929 Munchen
Facsimile No: +49-89-993-15199
Attention: Robert Eckert
77
with a copy to:
Powell, Goldstein, Frazer
& Murphy LLP
1001 Pennsylvania Avenue, N.W.
Washington D.C. 20004
Facsimile No: +202-624-7222
Attention: Joseph M. Berl, Esq.
if to the Trustee:
The Bank of New York, as Trustee, Registrar or Paying Agent
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Facsimile: (212) 815-5915
Each of the Company and the Trustee by written notice to each other such
Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Company and the Trustee, must be in
writing and shall be deemed to have been given or made as of the date so
delivered if personally delivered; when receipt is acknowledged, if telecopied;
and upon actual receipt if sent by first class mail, postage prepaid (except
that a notice of change of address and a Notice to the Trustee shall not be
deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed to such
Person by first-class mail or other equivalent means at such Person's address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
Notices regarding the Notes in global form will be published in a leading
newspaper having a general circulation in New York (which is expected to be The
Wall Street Journal) and in Frankfurt (which is expected to be the Frankfurter
Allgemeine Zeitung) (and, if and so long as the Notes in global form are listed
on the Luxembourg Stock Exchange and the rules of such stock exchange shall so
require, a leading daily newspaper having a general circulation in Luxembourg
(which is expected to be the Luxemburger Wort). Notices regarding the
Definitive Notes will be mailed to Holders by first-class mail at their
respective addresses as they appear on the registration books of the Registrar
and, if and so long as the Definitive Notes are listed on the Luxembourg Stock
Exchange and the rules of such stock exchange shall so require, will be
published in a leading daily newspaper having a general circulation in
Luxembourg (which is expected to be the Luxemburger Wort). Notices given by
publication will be deemed given on the
78
first date on which publication is made and notices given by first-class mail,
postage prepaid, will be deemed given five calendar days after mailing.
SECTION 11.3 Communications by Holders with Other Holders. Holders may
--------------------------------------------
communicate pursuant to Section 312(b) of the TIA with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and any other person shall have the protection of Section
312(c) of the TIA.
SECTION 11.4 Certificate and Opinion as to Conditions Precedent. Upon
--------------------------------------------------
any request or application by the Company to the Trustee or an Agent to take any
action under this Indenture, the Company shall furnish to the Trustee at the
request of the Trustee:
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.5), stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied or complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee or such Agent (which shall include the statements set forth
in Section 11.5) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied or complied with.
SECTION 11.5 Statements Required in Certificate or Opinion. Each
---------------------------------------------
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, such Person has
made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public officials.
79
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar. The Trustee,
-----------------------------------------
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.7 Legal Holidays. If a payment date is not a Business Day,
--------------
payment may be made on the next succeeding day that is a Business Day, and no
interest shall accrue for the intervening period.
SECTION 11.8 Governing Law. This Indenture and the Notes shall be
-------------
governed by, and construed and interpreted in accordance with, the laws of the
State of New York.
SECTION 11.9 Submission to Jurisdiction; Appointment of Agent for
----------------------------------------------------
Service; Waiver. To the fullest extent permitted by applicable law, the Company
- ---------------
irrevocably submits to the non-exclusive jurisdiction of any federal or state
court in the Borough of Manhattan in The City of New York, County and State of
New York, United States of America, in any suit or proceeding based on or
arising under this Indenture and the Notes, and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in any such
court. The Company, to the fullest extent permitted by applicable law,
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding and hereby irrevocably designates and
appoints CSC (the "Authorized Agent"), for a period of ten years from the date
----------------
hereof or until such time as no Notes are outstanding, as its authorized agent
upon whom process may be served in any such suit or proceeding. The Company
represents that it has notified the Authorized Agent of such designation and
appointment and that the Authorized Agent has accepted the same in writing. The
Company hereby irrevocably authorizes and directs its Authorized Agent to accept
such service. The Company further agrees that service of process upon its
Authorized Agent and written notice of said service to the Company mailed by
first class mail or delivered to its Authorized Agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. Nothing herein shall affect the right of any person to serve
process in any other manner permitted by law. The Company agrees that a final
action in any such suit or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other lawful manner.
Notwithstanding the foregoing, any action against the Company arising out of or
based on this Indenture, the Notes or the transactions contemplated hereby may
also be instituted in any competent court in Germany, and the Company expressly
accepts the jurisdiction of any such court in any such action.
The Company hereby irrevocably waives, to the extent permitted by law, any
immunity to jurisdiction to which it may otherwise be entitled (including,
without limitation, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or based on this Indenture, the Notes or the transactions
contemplated hereby.
To the extent permitted by applicable law, the Company and the Trustee
each waive any right to have a jury participate in resolving any dispute,
whether sounding in contract, tort, or otherwise arising out of, connected with,
related to or incidental to the relationship established between them in
connection with this agreement. Instead, any disputes resolved in court will be
resolved in a bench trial without a jury.
80
The provisions of this Section 11.9 are intended to be effective upon the
execution of this Indenture and the Notes without any further action by the
Company or the Trustee and the introduction of a true copy of this Indenture
into evidence shall be conclusive and final evidence as to such matters.
SECTION 11.10 No Adverse Interpretation of Other Agreements. This
---------------------------------------------
Indenture may not be used to interpret another indenture, loan or debt agreement
of any of the Company or any of its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.11 No Personal Liability of Directors, Officers, Employees,
--------------------------------------------------------
Stockholders or Incorporators. No director, officer, employee, incorporator or
- -----------------------------
stockholder of the Company shall have any liability for any obligations of the
Company under the Notes or this Indenture or for any claim based on, in respect
of, or by reason of such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
SECTION 11.12 Currency Indemnity. U.S. dollars are the sole currency of
------------------
account and payment for all sums payable by the Company under or in connection
with the Notes, including damages. Any amount received or recovered in a
currency other than U.S. dollars (whether as a result of, or the enforcement of,
a judgment or order of a court of any jurisdiction, in the winding-up or
dissolution of the Company or otherwise) by any Holder of a Note, the Trustee or
the Agents in respect of any sum expressed to be due to it from the Company
shall only constitute a discharge to the Company to the extent of the U.S.
dollar amount which the recipient is able to purchase with the amount so
received or recovered in that other currency on the date of that receipt or
recovery (or, if it is not practicable to make that purchase on that date, on
the first date on which it is practicable to do so). If that U.S. dollar amount
is less than the U.S. dollar amount expressed to be due to the recipient, the
Company shall indemnify it against any loss sustained by it as a result. If the
dollar amount is greater than the dollar amount expressed to be due to the
recipient under this Agreement, the Company shall be entitled to the amount of
such excess. In any event, the Company shall indemnify the recipient against
the cost of making any such purchase. For the purposes of this subsection, it
will be sufficient for the Trustee or any Holder of a Note to certify in a
satisfactory manner (indicating the sources of information used) that it would
have suffered a loss had an actual purchase of U.S. dollars been made with the
amount so received in that other currency on the date of receipt or recovery
(or, if a purchase of dollars on such date had not been practicable, on the
first date on which it would have been practicable, it being required that the
need for a change of date be certified in the manner mentioned above). These
indemnities constitute a separate and independent obligation from the Company's
other obligations, shall give rise to a separate and independent cause of
action, shall apply irrespective of any indulgence granted by the Trustee or any
Holder of a Note and shall continue in full force and effect despite any other
judgment, order, claim or proof for a liquidated amount in respect of any sum
due under any Note.
SECTION 11.13 Successors. All agreements of the Company in this
----------
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successor.
81
SECTION 11.14 Counterpart Originals All parties hereto may sign any
---------------------
number of copies of this Indenture. Each signed copy or counterpart shall be an
original, but all of them together shall represent one and the same agreement.
SECTION 11.15 Severability. In case any one or more of the provisions
------------
in this Indenture or in the Notes shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
SECTION 11.16 Table of Contents, Headings, etc. The Table of Contents,
--------------------------------
Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
82
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the date first written above.
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
By: /s/ Authorized Signatory
-------------------------------------
By: /s/ Authorized Signatory
-------------------------------------
83
THE BANK OF NEW YORK, as Trustee,
Registrar and Paying Agent
By: /s/ Authorized Signatory
-------------------------------------
Name:
Title:
84
EXHIBIT A
TO THE INDENTURE
[FORM OF FACE OF INITIAL GLOBAL NOTE]
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
--------------
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST
DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
------------------------------
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
- ----
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (D) WITH THE CONSENT OF THE COMPANY PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT,
--------
IN CONSENTING TO ANY SALE OR OFFER PURSUANT TO CLAUSE (D) ABOVE, THE COMPANY
SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OR TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE, THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
A-1
THE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED AS PART
OF THEIR INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER, DIRECTLY OR INDIRECTLY,
OTHER THAN TO (INVESTMENT) BANKS, PENSION FUNDS, INSURANCE COMPANIES, SECURITIES
FIRMS, INVESTMENT INSTITUTIONS, CENTRAL GOVERNMENTS, LARGE INTERNATIONAL AND
SUPRA-NATIONAL ORGANIZATIONS AND OTHER COMPARABLE ENTITIES, INCLUDING, AMONG
OTHERS, TREASURIES AND FINANCE COMPANIES OF LARGE ENTERPRISES, WHICH ARE ACTIVE
ON A REGULAR AND PROFESSIONAL BASIS IN THE FINANCIAL MARKETS FOR THEIR OWN
ACCOUNT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
---
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF DTC AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.6 OF THE INDENTURE PURSUANT TO WHICH THEY WERE ISSUED.
A-2
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
14.0% Senior Note due 2009
CUSIP No.: 232503AA0
No.1 $150,000,000
CYBERNET INTERNET SERVICES INTERNATIONAL, INC., a Delaware corporation (the
"Company", which term includes any successor corporation), for value received
promises to pay Cede & Co. or registered assigns upon surrender hereof the
principal sum indicated on Schedule A hereof, on July 1, 2009.
Interest Payment Dates: January 1 and July 1, commencing January 1, 2000
Record Dates: December 15 and June 15
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
A-4
Certificate of Authentication:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK, as Trustee,
By:
-----------------------------------------
Name:
Title:
Dated: July 8, 1999
A-5
[FORM OF REVERSE]
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
14.0% Senior Note due 2009
1. Interest. CYBERNET INTERNET SERVICES INTERNATIONAL, INC., a Delaware
--------
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at the rate and in the manner specified below. Interest on the Notes
will accrue at 14.0% per annum on the principal amount then outstanding, and be
payable semi-annually in arrears on each January 1 and July 1, or if any such
day is not a Business Day on the next succeeding Business Day, commencing
January 1, 2000, to the Holder hereof. Notwithstanding any exchange of this Note
for a Definitive Note during the period starting on a Record Date relating to
such Definitive Note and ending on the immediately succeeding Interest Payment
Date, the interest due on such Interest Payment Date shall be payable to the
Person in whose name this Global Note is registered at the close of business on
the Record Date for such interest. Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from July 8, 1999. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods), on
any Additional Amounts, and on any Liquidated Damages, from time to time on
demand at the rate borne by the Notes plus 1.5% per annum to the extent lawful.
Any interest paid on this Note shall be increased to the extent necessary to pay
Additional Amounts as set forth herein.
2. Liquidated Damages. Pursuant to a Registration Rights Agreement
------------------
between the Company and the Initial Purchasers on behalf of Holders of the
Initial Notes, the Company has agreed to use its reasonable best efforts to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for the Company's 14.0% Senior Notes due
2009 (the "Exchange Notes"), which have then been registered under the
Securities Act, in like principal amount and having substantially identical
terms in all material respects as the Initial Notes. The Holders shall be
entitled to receive payment of additional interest ("Liquidated Damages") in the
event such exchange offer is not consummated and in certain other events,
subject, in each case, to certain conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement. Liquidated Damages which
may be payable pursuant to the Registration Rights Agreement shall be payable in
the same manner as set forth herein with respect to the stated interest. The
provisions of the Registration Rights Agreement relating to such Liquidated
Damages are incorporated herein by reference and made a part hereof as if set
forth herein in full. The Company shall provide written notice to the Trustee
of the accrual and amount of Liquidated Damages, if any, not less than ten (10)
Business Days prior to each Interest Payment Date. Absent such notice, the
Trustee shall be conclusively entitled to presume that no Liquidated Damages
have accrued and are owing.
3. Additional Amounts. All payments made by the Company on the Notes
------------------
(whether or not in the form of Definitive Notes) will be made without
withholding or deduction for, or on account of, any present or future taxes,
duties, assessments or governmental charges of whatever
A-6
nature (collectively, "Taxes") imposed or levied by or on behalf of Germany or
any jurisdiction in which the Company or any Surviving Entity is organized or is
otherwise resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless the withholding
or deduction of such Taxes is then required by law. If any deduction or
withholding for, or on account of, any Taxes of any Relevant Taxing
Jurisdiction, shall at any time be required on any payments made by the Company
with respect to the Notes, including payments of principal, redemption price,
interest or premium, the Company will pay such additional amounts (the
"Additional Amounts") as may be necessary in order that the net amounts received
in respect of such payments by the Holders of the Notes or the Trustee, as the
case may be, after such withholding or deduction, equal the respective amounts
which would have been received in respect of such payments in the absence of
such withholding or deduction; except that no such Additional Amounts will be
payable with respect to:
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note by
reason of the Holder or beneficial owner having some connection with the
Relevant Taxing Jurisdiction (including being a citizen or resident or
national of, or carrying on a business or maintaining a permanent
establishment in, or being physically present in, the Relevant Taxing
Jurisdiction) other than by the mere holding of such Note or enforcement of
rights thereunder or the receipt of payments in respect thereof;
(b) any Taxes that are imposed or withheld as a result of a change in
law after the Issue Date where such withholding or imposition is by reason
of the failure of the Holder or beneficial owner of the Note to comply with
any request by the Company to provide information concerning the
nationality, residence or identity of such Holder or beneficial owner or to
make any declaration or similar claim or satisfy any information or
reporting requirement, which is required or imposed by a statute, treaty,
regulation or administrative practice of the Relevant Taxing Jurisdiction
as a precondition to exemption from all or part of such Taxes;
(c) except in the case of the winding up of the Company, any Note
presented for payment (where presentation is required) in the Relevant
Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is required)
more than 30 days after the relevant payment is first made available for
payment to the Holder.
Such Additional Amounts will also not be payable where, had the
beneficial owner of the Note been the Holder of the Note, he would not have been
entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
4. Method of Payment. The Company shall pay interest on the Notes
-----------------
(except defaulted interest) to the Person in whose name this Note is registered
at the close of business on the Record Date for such interest. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in dollars or in such other coin or currency of
the United States of America that at the time of payment which is legal tender
for payment of public and private debts. Immediately available funds for the
payment of the principal of (and
A-7
premium, if any), interest, Additional Amounts, if any, and Liquidated Damages,
if any, on this Note due on any Interest Payment Date, Maturity Date, Redemption
Date or other repurchase date will be made available to the Paying Agent to
permit the Paying Agent to pay such funds to the Holders on such respective
dates.
5. Paying Agent and Registrar. Initially, The Bank of New York will
--------------------------
act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act in any such capacity.
6. Indenture. The Company issued the Notes under an Indenture, dated
---------
as of July 8, 1999 (the "Indenture"), between the Company and The Bank of New
York (the "Trustee"). This Note is one of a duly authorized issue of [Original]
[Additional] Notes (as defined in the Indenture) of the Company designated as
its 14.0% Senior Notes due 2009 (together with the [Original] [Additional]
Notes, the "Initial Notes"). The Notes include the Initial Notes and the
Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of
the Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Notes are subject
to all such terms, and Holders of Notes are referred to the Indenture and the
TIA for a statement of them. The Notes are not secured by any of the assets of
the Company except to the limited extent provided for by the Collateral
Agreement, and will become general unsecured obligations of the Company upon
disbursement in full of the funds in the Collateral Account. The Notes are
limited in aggregate principal amount to $350 million subject to the terms of
the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
7. Ranking. The Notes will be general unsecured (except to the
-------
extent provided for by the Collateral Agreement) obligations of the Company and
will rank senior in right of payment to all future Indebtedness of the Company
that is, by its terms or by the terms of the agreement or instrument governing
such Indebtedness, expressly subordinated in right of payment to the Notes and
pari passu in right of payment with all existing and future unsecured
liabilities of the Company that are not so subordinated.
8. Optional Redemption. The Notes will be redeemable, at the
--------------------
Company's option, in whole or in part, on and after July 1, 2004 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Frankfurt (which is expected to be the Frankfurter
Allgemeine Zeitung) (and if, and so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of such stock exchange shall so require,
published in a newspaper having a general circulation in Luxembourg (which is
expected to be the Luxemburger Wort)) at the redemption prices (expressed as a
percentage of principal amount) set forth below, plus accrued and unpaid
interest, Additional Amounts, if any, and Liquidated Damages, if any, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on July 1 of each of the years indicated below:
A-8
Redemption
Year Price
- ---- ----------
2004................................................... 110.000%
2005................................................... 106.667%
2006................................................... 103.333%
2007 and thereafter.................................... 100.000%
9. Special Tax Redemption. The Notes may be redeemed, at the option
----------------------
of the Company in whole but not in part, at any time upon giving not less than
30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the principal amount thereof,
together with accrued and unpaid interest and Liquidated Damages, if any, to
the date fixed by the Company for redemption (a "Tax Redemption Date"), and, all
Additional Amounts, if any, then due and which will become due on the Tax
Redemption Date as a result of the redemption or otherwise, if the Company
determines that, as a result of (i) any change in, or amendment to, the laws or
treaties (or any regulations or rulings promulgated thereunder) of The Federal
Republic of Germany (or any political subdivision or taxing authority thereof)
affecting taxation which becomes effective on or after the Issue Date, or (ii)
any change in or new or different position regarding the application,
administration or interpretation of such laws, treaties, regulations or rulings
(including a holding, judgment or order by a court of competent jurisdiction),
which change, amendment, application or interpretation becomes effective on or
after the Issue Date, the Company is, or on the next Interest Payment Date would
be, required to pay Additional Amounts, and the Company determines that such
payment obligation cannot be avoided by the Company taking reasonable measures.
Notwithstanding the foregoing, no such notice of redemption shall be given
earlier than 90 days prior to the earliest date on which the Company would be
obligated to make such payment or withholding if a payment in respect of the
Notes were then due. Prior to the publication or, where relevant, mailing of any
notice of redemption of the Notes pursuant to the foregoing, the Company will
deliver to the Trustee an opinion of an independent tax counsel of recognized
international standing to the effect that the circumstances referred to above
exist. The Trustee shall accept such opinion as sufficient evidence of the
satisfaction of the conditions precedent described above, in which event it
shall be conclusive and binding on the Holders.
10. Notice of Redemption. Notice of redemption will be given at
--------------------
least 30 days but not more than 60 days before the redemption date by publishing
in a leading newspaper having a general circulation in New York (which is
expected to be The Wall Street Journal) and in Frankfurt (which is expected to
be the Frankfurter Allgemeine Zeitung) (and, if and so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such stock exchange
shall so require, a newspaper having a general circulation in Luxembourg (which
is expected to be the Luxemburger Wort)). Notes in denominations of $1,000 may
be redeemed only in whole. The Trustee may select for redemption portions
(equal to $1,000 or any integral multiple thereof) of the principal of Notes
that have denominations larger than $1,000.
Except as set forth in the Indenture, from and after any redemption
date, if monies for the redemption of the Notes called for redemption shall have
been deposited with the Paying Agent for redemption on such redemption date,
then, unless the Company defaults in the payment of such Redemption Price, the
Notes called for redemption will cease to bear interest, Additional
A-9
Amounts, if any, or Liquidated Damages, if any, and the only right of the
Holders of such Notes will be to receive payment of the Redemption Price.
11. Change of Control Offer. Upon the occurrence of a Change of
-----------------------
Control, the Company will be required to make an offer to purchase all or any
part (equal to $1,000 in principal amount and integral multiples thereof) of the
Notes on the Change of Control Payment Date at a purchase price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest,
thereon to the date of repurchase plus Additional Amounts, if any, and
Liquidated Damages, if any, to the date of repurchase. Holders of Notes that are
subject to an offer to purchase will receive a Change of Control Offer from the
Company prior to any related Change of Control Payment Date and may elect to
have such Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
12. Limitation on Disposition of Assets. When the aggregate amount
-----------------------------------
of Excess Proceeds from Asset Sales exceeds C5.0 million, the Company will be
obligated, within 15 Business Days thereafter, to make an offer to purchase the
maximum principal amount of Notes, that is an integral multiple of $1,000, that
may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon, plus Additional Amounts, if any, and Liquidated
Damages, if any, to the date fixed for the closing of such offer. If the
aggregate principal amount of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, subject to applicable law, the Trustee shall select
the Notes to be redeemed in accordance with the Indenture; provided, however,
that no Notes of $1,000 or less shall be purchased in part. Holders of Notes
that are the subject of an offer to purchase will receive an Asset Sale Offer
from the Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holders to Elect
Purchase" appearing below.
13. Denominations; Form. The Global Notes are in registered global
-------------------
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000.
14. Persons Deemed Owners. The registered Holder of this Note shall
---------------------
be treated as the owner of it for all purposes, subject to the terms of the
Indenture.
15. Unclaimed Funds. If funds for the payment of principal,
---------------
interest, Additional Amounts or Liquidated Damages remain unclaimed for two
years, the Trustee and the Paying Agents will repay the funds to the Company at
its written request. After that, all liability of the Trustee and such Paying
Agents with respect to such funds shall cease.
16. Legal Defeasance and Covenant Defeasance. The Company may be
----------------------------------------
discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from its
obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
17. Amendment; Supplement; Waiver. Subject to certain exceptions
-----------------------------
specified in the Indenture, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of at least a majority in
principal amount of the Notes then outstanding, and any existing
A-10
Default or Event of Default or compliance with any provision of the Indenture or
the Notes may be waived with the consent of the Holders of a majority in
principal amount of the Notes then outstanding.
18. Restrictive Covenants. The Indenture imposes certain covenants
---------------------
that, among other things, limit the ability of the Company and its Restricted
Subsidiaries to, incur additional Indebtedness, pay dividends or make other
distributions or investments, repurchase Equity Interests or make certain other
Restricted Payments, enter into certain consolidations or mergers or enter into
certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important qualifications and exceptions. The Company
must annually report to the Trustee on compliance with such limitations.
19. Successors. When a successor assumes all the obligations of its
----------
predecessor under the Notes and the Indenture in accordance with the terms of
the Indenture, the predecessor will be released from those obligations.
20. Defaults and Remedies. If an Event of Default (other than an
---------------------
Event of Default specified in subsections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest, Additional Amounts, if any,
and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
21. Trustee Dealings with Company. The Trustee under the Indenture,
-----------------------------
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
22. No Recourse Against Others. No stockholder, director, officer,
--------------------------
employee or incorporator, as such, of the Company shall have any liability for
any obligation of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of the Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
23. Authentication. This Note shall not be valid until the Trustee
--------------
or authenticating agent signs the certificate of authentication on this Note.
24. Abbreviations and Defined Terms. Customary abbreviations may be
-------------------------------
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
A-11
25. CUSIP Numbers. Pursuant to a recommendation promulgated by the
-------------
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Notes immediately prior to the qualification
of the Indenture under the TIA as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
26. Governing Law. The Indenture and the Notes shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York.
A-12
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be
$150,000,000. The following decreases/increases in the principal amount at
maturity of this Note have been made:
Total Principal
Amount at Notation
Decrease in Increase in Maturity Made by
Date of Principal Principal Following such or on
Decrease/ Amount at Amount at Decrease/ Behalf of
Increase Maturity Maturity Increase Trustee
- --------- ----------- ----------- --------------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount:
$
----------
Date:
-------------
Your Signature:
--------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
----------------------------------------
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
A-14
EXHIBIT B
TO THE INDENTURE
[FORM OF FACE OF INITIAL DEFINITIVE NOTE]
THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
--------------
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST
DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
------------------------------
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
- ----
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (D), WITH THE CONSENT OF THE COMPANY, PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHICH THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT,
--------
IN CONSENTING TO ANY SALE OR OFFER PURSUANT TO CLAUSE (D) ABOVE, THE COMPANY
SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE
B-1
TRUSTEE, THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
THE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED AS
PART OF THEIR INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER, DIRECTLY OR
INDIRECTLY, OTHER THAN TO (INVESTMENT) BANKS, PENSION FUNDS, INSURANCE
COMPANIES, SECURITIES FIRMS, INVESTMENT INSTITUTIONS, CENTRAL GOVERNMENTS, LARGE
INTERNATIONAL AND SUPRA-NATIONAL ORGANIZATIONS AND OTHER COMPARABLE ENTITIES,
INCLUDING, AMONG OTHERS, TREASURIES AND FINANCE COMPANIES OF LARGE ENTERPRISES,
WHICH ARE ACTIVE ON A REGULAR AND PROFESSIONAL BASIS IN THE FINANCIAL MARKETS
FOR THEIR OWN ACCOUNT.
B-2
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
14.0% Senior Note due 2009
CUSIP No.:
------------
No. $
---- ---------
CYBERNET INTERNET SERVICES INTERNATIONAL, INC., a Delaware corporation
(the "Company", which term includes any successor corporation), for value
received promises to pay ______________________, or registered assigns, upon
surrender hereof the principal sum of U.S.$________, on July 1, 2009.
Interest Payment Dates: January 1 and July 1, commencing January 1,
2000
Record Dates: December 15 and June 15
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
B-3
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------------
Name:
Title:
Dated:
B-4
[FORM OF REVERSE]
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
14.0% Senior Note due 2009
1. Interest. CYBERNET INTERNET SERVICES INTERNATIONAL, INC., a
--------
Delaware corporation (the "Company"), promises to pay interest on the principal
amount of this Note at the rate and in the manner specified below. Interest on
the Notes will accrue at 14.0% per annum on the principal amount then
outstanding, and be payable semi-annually in arrears on each January 1 and
July 1, or if any such day is not a Business Day on the next succeeding Business
Day, commencing January 1, 2000, to the Holder hereof. Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from July 8, 1999. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods), on
any Additional Amounts, and on any Liquidated Damages, from time to time on
demand at the rate borne by the Notes plus 1.5% per annum to the extent lawful.
Any interest paid on this Note shall be increased to the extent necessary to pay
Additional Amounts as set forth herein.
2. Liquidated Damages. Pursuant to a Registration Rights Agreement
------------------
between the Company and the Initial Purchasers on behalf of Holders of the
Initial Notes, the Company has agreed to use its reasonable best efforts to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for the Company's 14.0% Senior Notes due
2009 (the "Exchange Notes"), which have then been registered under the
Securities Act, in like principal amount and having substantially identical
terms in all material respects as the Initial Notes. The Holders shall be
entitled to receive payment of additional interest ("Liquidated Damages") in the
event such exchange offer is not consummated and in certain other events,
subject, in each case, to certain conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement. Liquidated Damages which
may be payable pursuant to the Registration Rights Agreement shall be payable in
the same manner as set forth herein with respect to the stated interest. The
provisions of the Registration Rights Agreement relating to such Liquidated
Damages are incorporated herein by reference and made a part hereof as if set
forth herein in full. The Company shall provide written notice to the Trustee
of the accrual and amount of Liquidated Damages, if any, not less than ten (10)
Business Days prior to each Interest Payment Date. Absent such notice, the
Trustee shall be conclusively entitled to presume that no Liquidated Damages
have accrued and are owing.
3. Additional Amounts. All payments made by the Company on the Notes
------------------
(whether or not in the form of Definitive Notes) will be made without
withholding or deduction for, or on account of, any present or future taxes,
duties, assessments, or governmental charges of whatever nature (collectively,
"Taxes") imposed or levied by or on behalf of Germany or any
B-5
jurisdiction in which the Company or any Surviving Entity is organized or is
otherwise resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless the withholding
or deduction of such Taxes is then required by law. If any deduction or
withholding for, or on account of, any Taxes of any Relevant Taxing
Jurisdiction, shall at any time be required on any payments made by the Company
with respect to the Notes, including payments of principal, redemption price,
interest or premium, the Company will pay such additional amounts (the
"Additional Amounts") as may be necessary in order that the net amounts received
in respect of such payments by the Holders of the Notes or the Trustee, as the
case may be, after such withholding or deduction, equal the respective amounts
which would have been received in respect of such payments in the absence of
such withholding or deduction; except that no such Additional Amounts will be
payable with respect to:
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note by
reason of the Holder or beneficial owner having some connection with the
Relevant Taxing Jurisdiction (including being a citizen or resident or
national of, or carrying on a business or maintaining a permanent
establishment in, or being physically present in, the Relevant Taxing
Jurisdiction) other than by the mere holding of such Note or enforcement of
rights thereunder or the receipt of payments in respect thereof;
(b) any Taxes that are imposed or withheld as a result of a change in
law after the Issue Date where such withholding or imposition is by reason
of the failure of the Holder or beneficial owner of the Note to comply with
any request by the Company to provide information concerning the
nationality, residence or identity of such Holder or beneficial owner or to
make any declaration or similar claim or satisfy any information or
reporting requirement, which is required or imposed by a statute, treaty,
regulation or administrative practice of the Relevant Taxing Jurisdiction
as a precondition to exemption from all or part of such Taxes;
(c) except in the case of the winding up of the Company, any Note
presented for payment (where presentation is required) in the Relevant
Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is required)
more than 30 days after the relevant payment is first made available for
payment to the Holder.
Such Additional Amounts will also not be payable where, had the
beneficial owner of the Note been the Holder of the Note, he would not have been
entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
4. Method of Payment. The Company shall pay interest on the Notes
-----------------
(except defaulted interest) to the Persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest Payment
Date for such interest. Holders must surrender Notes to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
dollars or in such other coin or currency of the United States of America at the
time of payment which is legal tender for payment of public and private debts;
provided, however, that with respect to any payment of principal, interest,
Additional Amounts, if any, and
B-6
Liquidated Damages, if any, in excess of C100,000 to any payee or group of
related payees, such payment will be made, at the option of the Holder hereof,
by wire transfer of same day funds to the Paying Agent, who in turn will wire
such funds to the Holder hereof or to such individuals as the Holder hereof may
in writing to the Paying Agent direct; provided that the Paying Agent has
received written wire transfer instructions at least fifteen days prior to the
date of any such payment.
5. Paying Agent and Registrar. Initially, The Bank of New York will
--------------------------
act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act in any such capacity.
6. Indenture. The Company issued the Notes under an Indenture, dated
---------
as of July 8, 1999 (the "Indenture"), between the Company and The Bank of New
York (the "Trustee"). This Note is one of a duly authorized issue of [Original]
[Additional] Notes (as defined in the Indenture) of the Company designated as
its 14.0% Senior Notes due 2009 (together with the [Original] [Additional]
Notes, the "Initial Notes"). The Notes include the Initial Notes and the
Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of
the Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwith standing anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA for a statement of them. The Notes are not secured by any of the
assets of the Company except to the limited extent provided for by the
Collateral Agreement, and will become general unsecured obligations of the
Company upon disbursement in full of the funds in the Collateral Account. The
Notes are limited in aggregate principal amount to $350 million subject to the
terms of the Indenture. Each Holder, by accepting a Note, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
7. Ranking. The Notes will be general unsecured (except to the
-------
extent provided for by the Collateral Agreement) obligations of the Company and
will rank senior in right of payment to all future Indebtedness of the Company
that is, by its terms or by the terms of the agreement or instrument governing
such Indebtedness, expressly subordinated in right of payment to the Notes and
pari passu in right of payment with all existing and future unsecured
liabilities of the Company that are not so subordinated.
8. Optional Redemption. The Notes will be redeemable, at the
--------------------
Company's option, in whole or in part, on and after July 1, 2004 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Frankfurt (which is expected to be the Frankfurter
Allgemeine Zeitung) (and if, and so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of such stock exchange shall so require,
published in a newspaper having a general circulation in Luxembourg (which is
expected to be the Luxemburger Wort)) and mailed by first-class mail to each
Holder's registered address, at the redemption prices (expressed as a percentage
of principal amount) set forth below, plus accrued and unpaid interest,
B-7
Additional Amounts, if any, and Liquidated Damages, if any, to the applicable
redemption date (and, subject to the rights of Holders of record on the relevant
record date to receive interest and Additional Amounts, if any, and Liquidated
Damages, if any, due on the relevant interest payment date in respect thereof),
if redeemed during the twelve-month period beginning on July 1 of each of the
years indicated below:
Redemption
Year Price
- ---- ----------
2004................................................. 110.000%
2005................................................. 106.667%
2006................................................. 103.333%
2007 and thereafter.................................. 100.000%
9. Special Tax Redemption. The Notes may be redeemed, at the option
----------------------
of the Company in whole but not in part, at any time upon giving not less than
30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the principal amount thereof,
together with accrued and unpaid interest and Liquidated Damages, if any, to the
date fixed by the Company for redemption (a "Tax Redemption Date"), and, all
Additional Amounts, if any, then due and which will become due on the Tax
Redemption Date as a result of the redemption or otherwise, if the Company
determines that, as a result of (i) any change in, or amendment to, the laws or
treaties (or any regulations or rulings promulgated thereunder) of The Federal
Republic of Germany (or any political subdivision or taxing authority thereof)
affecting taxation which becomes effective on or after the Issue Date, or (ii)
any change in or new or different position regarding the application,
administration or interpretation of such laws, treaties, regulations or rulings
(including a holding, judgment or order by a court of competent jurisdiction),
which change, amendment, application or interpretation becomes effective on or
after the Issue Date, the Company is, or on the next Interest Payment Date would
be, required to pay Additional Amounts, and the Company determines that such
payment obligation cannot be avoided by the Company taking reasonable measures.
Notwithstanding the foregoing, no such notice of redemption shall be given
earlier than 90 days prior to the earliest date on which the Company would be
obligated to make such payment or withholding if a payment in respect of the
Notes were then due. Prior to the publication or, where relevant, mailing of any
notice of redemption of the Notes pursuant to the foregoing, the Company will
deliver to the Trustee an opinion of an independent tax counsel of recognized
international standing to the effect that the circumstances referred to above
exist. The Trustee shall accept such opinion as sufficient evidence of the
satisfaction of the conditions precedent described above, in which event it
shall be conclusive and binding on the Holders.
10. Notice of Redemption. Notice of redemption will be given at
--------------------
least 30 days but not more than 60 days before the redemption date by publishing
in a leading newspaper having a general circulation in New York (which is
expected to be The Wall Street Journal) and in Frankfurt (which is expected to
be the Frankfurter Allgemeine Zeitung) (and, if and so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such stock exchange
shall so require, a newspaper having a general circulation in Luxembourg (which
is expected to be the Luxemburger Wort)) and mailed to Holders by first-class
mail at their respective addresses as they appear on the registration books of
the Registrar. Notes in denominations of $1,000 may
B-8
be redeemed only in whole. The Trustee may select for redemption portions (equal
to $1,000 or any integral multiple thereof) of the principal of Notes that have
denominations larger than $1,000.
Except as set forth in the Indenture, from and after any redemption
date, if monies for the redemption of the Notes called for redemption shall have
been deposited with the Paying Agent for redemption on such redemption date,
then, unless the Company defaults in the payment of such Redemption Price, the
Notes called for redemption will cease to bear interest, Additional Amounts, if
any, or Liquidated Damages, if any, and the only right of the Holders of such
Notes will be to receive payment of the Redemption Price.
11. Change of Control Offer. Upon the occurrence of a Change of
-----------------------
Control, the Company will be required to make an offer to purchase all or any
part (equal to $1,000 in principal amount and integral multiples thereof) of the
Notes on the Change of Control Payment Date at a purchase price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest,
thereon to the date of repurchase plus Additional Amounts, if any, and
Liquidated Damages, if any, to the date of repurchase (and subject to the right
of Holders of record on the relevant record date to receive interest and
Liquidated Damages, if any, due on the relevant interest payment date and
Additional Amounts, if any, in respect thereof). Holders of Notes that are
subject to an offer to purchase will receive a Change of Control Offer from the
Company prior to any related Change of Control Payment Date and may elect to
have such Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
12. Limitation on Disposition of Assets. When the aggregate amount
-----------------------------------
of Excess Proceeds from Asset Sales exceeds C5.0 million, the Company will be
obligated, within 15 Business Days thereafter, to make an offer to purchase the
maximum principal amount of Notes, that is an integral multiple of $1,000, that
may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon, plus Additional Amounts, if any, and Liquidated
Damages, if any, to the date fixed for the closing of such offer (and subject to
the right of Holders of record on the relevant record date to receive interest
and Liquidated Damages, if any, due on the relevant interest payment date and
Additional Amounts, if any, in respect thereof). If the aggregate principal
amount of Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds, subject to applicable law, the Trustee shall select the Notes to be
redeemed in accordance with the Indenture; provided, however, that no Notes of
$1,000 or less shall be purchased in part. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holders to Elect Purchase"
appearing below.
13. Denominations; Form. The Definitive Notes are in bearer form,
-------------------
without coupons, in denominations of $1,000 and integral multiples of $1,000.
14. Persons Deemed Owners. The registered Holder of this Note shall
---------------------
be treated as the owner of it for all purposes, subject to the terms of the
Indenture.
B-9
15. Unclaimed Funds. If funds for the payment of principal,
---------------
interest, Additional Amounts or Liquidated Damages remain unclaimed for two
years, the Trustee and the Paying Agents will repay the funds to the Company at
its written request. After that, all liability of the Trustee and such Paying
Agents with respect to such funds shall cease.
16. Legal Defeasance and Covenant Defeasance. The Company may be
----------------------------------------
discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from its
obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
17. Amendment; Supplement; Waiver. Subject to certain exceptions
-----------------------------
specified in the Indenture, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of at least a majority in
principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
18. Restrictive Covenants. The Indenture imposes certain covenants
---------------------
that, among other things, limit the ability of the Company and its Restricted
Subsidiaries to, incur additional Indebtedness, pay dividends or make other
distributions or investments, repurchase Equity Interests or make certain other
Restricted Payments, enter into certain consolidations or mergers or enter into
certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important qualifications and exceptions. The Company
must annually report to the Trustee on compliance with such limitations.
19. Successors. When a successor assumes all the obligations of its
----------
predecessor under the Notes and the Indenture in accordance with the terms of
the Indenture, the predecessor will be released from those obligations.
20. Defaults and Remedies. If an Event of Default (other than an
---------------------
Event of Default specified in subsections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest, Additional Amounts, if any,
and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
B-10
21. Trustee Dealings with Company. The Trustee under the Indenture,
-----------------------------
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
22. No Recourse Against Others. No stockholder, director, officer,
--------------------------
employee or incorporator, as such, of the Company shall have any liability for
any obligation of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of the Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
23. Authentication. This Note shall not be valid until the Trustee
--------------
or authenticating agent signs the certificate of authentication on this Note.
24. Abbreviations and Defined Terms. Customary abbreviations may be
-------------------------------
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
25. CUSIP Numbers. Pursuant to a recommendation promulgated by the
-------------
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Notes immediately prior to the qualification
of the Indenture under the TIA as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
26. Governing Law. The Indenture and the Notes shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York.
B-11
--------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Note fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's social security or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of
the Company.
The agent may substitute another to act for him.
--------------------------------------------------------------------
Date: Your Signature:
-------------- ------------------------
--------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
B-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount:
$
-----------------
Date:
-------------
Your Signature:
--------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
--------------------------------------
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
B-13
EXHIBIT C
TO THE INDENTURE
[FORM OF FACE OF EXCHANGE GLOBAL NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
---
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF DTC AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.6 OF THE INDENTURE PURSUANT TO WHICH THEY WERE ISSUED.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO.
C-1
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
14.0% Senior Note due 2009
CUSIP No:
--------
No. $
----- --------------
CYBERNET INTERNET SERVICES INTERNATIONAL, INC., a Delaware corporation
(the "Company", which term includes any successor corporation), for value
received promises to pay to Cede & Co. or registered assigns upon surrender
hereof the principal sum indicated on Schedule A hereof on July 1, 2009.
Interest Payment Dates: January 1 and July 1, commencing January 1,
2000
Record Dates: December 15 and June 15
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
C-2
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK, as Trustee,
By:
------------------------------------
Name:
Title:
Dated:
C-3
[Form of REVERSE]
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
14.0% Senior Note due 2009
1. Interest. CYBERNET INTERNET SERVICES INTERNATIONAL, INC., a
--------
Delaware corporation (the "Company"), promises to pay interest on the principal
amount of this Note at the rate and in the manner specified below. Interest on
the Notes will accrue at 14.0% per annum on the principal amount then
outstanding, and be payable semi-annually in arrears on each January 1 and
July 1, or if any such day is not a Business Day on the next succeeding Business
Day, commencing July 1, 2000, to the Holder hereof. Notwithstanding any exchange
of this Note for a Definitive Note during the period starting on a Record Date
relating to such Definitive Note and ending on the immediately succeeding
Interest Payment Date, the interest due on such Interest Payment Date shall be
payable to the Person in whose name this Global Note is registered at the close
of business on the Record Date for such interest. Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from July 8, 1999. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods), on
any Additional Amounts, and on any Liquidated Damages, from time to time on
demand at the rate borne by the Notes plus 1.5% per annum to the extent lawful.
Any interest paid on this Note shall be increased to the extent necessary to pay
Additional Amounts as set forth herein.
2. Additional Amounts. All payments made by the Company on the Notes
------------------
(whether or not in the form of Definitive Notes) will be made without
withholding or deduction for, or on account of, any present or future taxes,
duties, assessments or governmental charges of whatever nature (collectively
"Taxes") imposed or levied by or on behalf of Germany or any jurisdiction in
which the Company or any Surviving Entity is organized or is otherwise resident
for tax purposes or any political subdivision thereof or any authority having
power to tax therein or any jurisdiction from or through which payment is made
(each a "Relevant Taxing Jurisdiction"), unless the withholding or deduction of
such Taxes is then required by law. If any deduction or withholding for, or on
account of, any Taxes of any Relevant Taxing Jurisdiction, shall at any time be
required on any payments made by the Company with respect to the Notes,
including payments of principal, redemption price, interest or premium, the
Company will pay such additional amounts (the "Additional Amounts") as may be
necessary in order that the net amounts received in respect of such payments by
the Holders of the Notes or the Trustee, as the case may be, after such
withholding or deduction, equal the respective amounts which would have been
received in respect of such payments in the absence of such withholding or
deduction; except that no such Additional Amounts will be payable with respect
to:
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note by
reason of the Holder or beneficial owner having some connection with the
Relevant Taxing Jurisdiction (including being
C-4
a citizen or resident or national of, or carrying on a business or
maintaining a permanent establishment in, or being physically present in,
the Relevant Taxing Jurisdiction) other than by the mere holding of such
Note or enforcement of rights thereunder or the receipt of payments in
respect thereof;
(b) any Taxes that are imposed or withheld as a result of a change in
law after the Issue Date where such withholding or imposition is by reason
of the failure of the Holder or beneficial owner of the Note to comply with
any request by the Company to provide information concerning the
nationality, residence or identity of such Holder or beneficial owner or to
make any declaration or similar claim or satisfy any information or
reporting requirement, which is required or imposed by a statute, treaty,
regulation or administrative practice of the Relevant Taxing Jurisdiction
as a precondition to exemption from all or part of such Taxes;
(c) except in the case of the winding up of the Company, any Note
presented for payment (where presentation is required) in the Relevant
Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is required)
more than 30 days after the relevant payment is first made available for
payment to the Holder.
Such Additional Amounts will also not be payable where, had the
beneficial owner of the Note been the Holder of the Note, he would not have been
entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
3. Method of Payment. The Company shall pay interest on the Notes
-----------------
(except defaulted interest) to the Person in whose name this Note is registered
at the close of business on the Record Date for such interest. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in s or in such other coin or currency of the
United States of America at the time of payment which is legal tender for
payment of public and private debts. Immediately available funds for the
payment of the principal of (and premium, if any), interest, Additional Amounts,
if any, on this Note due on any Interest Payment Date, Maturity Date, Redemption
Date or other repurchase date will be made available to the Paying Agent to
permit the Paying Agent to pay such funds to the Holders on such respective
dates.
4. Paying Agent and Registrar. Initially, The Bank of New York will
--------------------------
act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act in any such capacity.
5. Indenture. The Company issued the Notes under an Indenture, dated
---------
as of July 8, 1999 (the "Indenture"), between the Company and The Bank of New
York (the "Trustee"). This Note is one of a duly authorized issue of Exchange
Notes of the Company designated as its 14.0% Senior Notes due 2009. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture until such
time as the Indenture is qualified under the TIA, and thereafter as in effect on
the date on which the
C-5
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and the TIA for a statement of them. The Notes are not
secured by any of the assets of the Company except to the limited extent
provided for by the Collateral Agreement, and will become general unsecured
obligations of the Company upon disbursement in full of the funds in the
Collateral Account. The Notes are limited in aggregate principal amount to $350
million subject to the terms of the Indenture. Each Holder, by accepting a Note,
agrees to be bound by all of the terms and provisions of the Indenture, as the
same may be amended from time to time.
6. Ranking. The Notes will be general unsecured (except to the
-------
extent provided for by the Collateral Agreement) obligations of the Company and
will rank senior in right of payment to all future Indebtedness of the Company
that is, by its terms or by the terms of the agreement or instrument governing
such Indebtedness, expressly subordinated in right of payment to the Notes and
pari passu in right of payment with all existing and future unsecured
liabilities of the Company that are not so subordinated.
7. Optional Redemption. The Notes will be redeemable, at the
--------------------
Company's option, in whole or in part, on and after July 1, 2004 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Frankfurt (which is expected to be the Frankfurter
Allgemeine Zeitung ) (and if, and so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of such stock exchange shall so require,
published in a newspaper having a general circulation in Luxembourg (which is
expected to be the Luxemburger Wort)) at the redemption prices (expressed as a
percentage of principal amount) set forth below, plus accrued and unpaid
interest and Additional Amounts, if any, and Liquidated Damages, if any, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on July 1 of each of the years indicated below:
Redemption
Year Price
- ---- ----------
2004....................................................... 110.000%
2005....................................................... 106.667%
2006....................................................... 103.333%
2007 and thereafter........................................ 100.000%
8. Special Tax Redemption. The Notes may be redeemed, at the option
----------------------
of the Company in whole but not in part, at any time upon giving not less than
30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the principal amount thereof,
together with accrued and unpaid interest to the date fixed by the Company for
redemption (a "Tax Redemption Date") and all Additional Amounts, if any, then
due and which will become due on the Tax Redemption Date as a result of the
redemption or otherwise, if the Company determines that, as a result of (i) any
change in, or amendment to, the laws or treaties (or any regulations or rulings
promulgated thereunder) of The Federal Republic of Germany (or any political
subdivision or taxing authority thereof) affecting taxation which becomes
effective on or after the Issue Date, or (ii) any change in or new or different
position regarding the application, administration or interpretation of such
laws, treaties, regulations or
C-6
rulings (including a holding, judgment or order by a court of competent
jurisdiction), which change, amendment, application or interpretation becomes
effective on or after the Issue Date, the Company is, or on the next Interest
Payment Date would be, required to pay Additional Amounts, and the Company
determines that such payment obligation cannot be avoided by the Company taking
reasonable measures. Notwithstanding the foregoing, no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Company would be obligated to make such payment or withholding if a payment in
respect of the Notes were then due. Prior to the publication or, where relevant,
mailing of any notice of redemption of the Notes pursuant to the foregoing, the
Company will deliver to the Trustee an opinion of an independent tax counsel of
recognized international standing to the effect that the circumstances referred
to above exist. The Trustee shall accept such opinion as sufficient evidence of
the satisfaction of the conditions precedent described above, in which event it
shall be conclusive and binding on the Holders.
9. Notice of Redemption. Notice of redemption will be given at least
--------------------
30 days but not more than 60 days before the redemption date by publishing in a
leading newspaper having a general circulation in New York (which is expected to
be The Wall Street Journal) and in Frankfurt (which is expected to be the
Frankfurter Allgemeine Zeitung) (and, if and so long as the Notes are listed on
the Luxembourg Stock Exchange and the rules of such stock exchange shall so
require, a newspaper having a general circulation in Luxembourg (which is
expected to be the Luxemburger Wort)). Notes in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions (equal to
$1,000 or any integral multiple thereof) of the principal of Notes that have
denominations larger than $1,000.
Except as set forth in the Indenture, from and after any redemption
date, if monies for the redemption of the Notes called for redemption shall have
been deposited with the Paying Agent for redemption on such redemption date,
then, unless the Company defaults in the payment of such Redemption Price, the
Notes called for redemption will cease to bear interest, Additional Amounts, if
any, and the only right of the Holders of such Notes will be to receive payment
of the Redemption Price.
10. Change of Control Offer. Upon the occurrence of a Change of
-----------------------
Control, the Company will be required to make an offer to purchase all or any
part (equal to $1,000 in principal amount and integral multiples thereof) of the
Notes on the Change of Control Payment Date at a purchase price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest,
thereon to the date of repurchase plus Additional Amounts, if any, to the date
of repurchase. Holders of Notes that are subject to an offer to purchase will
receive a Change of Control Offer from the Company prior to any related Change
of Control Payment Date and may elect to have such Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" appearing below.
11. Limitation on Disposition of Assets. When the aggregate amount
-----------------------------------
of Excess Proceeds from Asset Sales exceeds C5.0 million, the Company will be
obligated, within 15 Business Days thereafter, to make an offer to purchase the
maximum principal amount of Notes, that is an integral multiple of $1,000, that
may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon, plus Additional Amounts, if any, to the date fixed for
the
C-7
closing of such offer. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, subject to applicable
law, the Trustee shall select the Notes to be redeemed in accordance with the
Indenture; provided, however, that no Notes of $1,000 or less shall be purchased
in part. Holders of Notes that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Company prior to any related purchase date
and may elect to have such Notes purchased by completing the form entitled
"Option of Holders to Elect Purchase" appearing below.
12. Denominations; Form. The Global Notes are in registered global
-------------------
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000.
13. Persons Deemed Owners. The registered Holder of this Note shall
---------------------
be treated as the owner of it for all purposes, subject to the terms of the
Indenture.
14. Unclaimed Funds. If funds for the payment of principal, interest
---------------
or Additional Amounts remain unclaimed for two years, the Trustee and the Paying
Agents will repay the funds to the Company at its written request. After that,
all liability of the Trustee and such Paying Agents with respect to such funds
shall cease.
15. Legal Defeasance and Covenant Defeasance. The Company may be
----------------------------------------
discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from its
obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
16. Amendment; Supplement; Waiver. Subject to certain exceptions
-----------------------------
specified in the Indenture, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of at least a majority in
principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
17. Restrictive Covenants. The Indenture imposes certain covenants
---------------------
that, among other things, limit the ability of the Company and its Restricted
Subsidiaries to, incur additional Indebtedness, pay dividends or make other
distributions or investments, repurchase Equity Interests or make certain other
Restricted Payments, enter into certain consolidations or mergers or enter into
certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important qualifications and exceptions. The Company
must annually report to the Trustee on compliance with such limitations.
18. Successors. When a successor assumes all the obligations of its
----------
predecessor under the Notes and the Indenture in accordance with the terms of
the Indenture, the predecessor will be released from those obligations.
19. Defaults and Remedies. If an Event of Default (other than an
---------------------
Event of Default specified in subsections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the
C-8
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Notes may
not enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee is not obligated to enforce the Indenture or the Notes unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Notes then outstanding to direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Notes notice of any
continuing Default or Event of Default (except a Default in payment of
principal, premium, interest, Additional Amounts, if any, and Liquidated
Damages, if any, including an accelerated payment) if it determines that
withholding notice is in their interest.
20. Trustee Dealings with Company. The Trustee under the Indenture,
-----------------------------
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
21. No Recourse Against Others. No stockholder, director, officer,
--------------------------
employee or incorporator, as such, of the Company shall have any liability for
any obligation of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of the Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
22. Authentication. This Note shall not be valid until the Trustee
--------------
or authenticating agent signs the certificate of authentication on this Note.
23. Abbreviations and Defined Terms. Customary abbreviations may be
-------------------------------
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
24. CUSIP Numbers. Pursuant to a recommendation promulgated by the
-------------
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Notes immediately prior to the qualification
of the Indenture under the TIA as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
25. Governing Law. The Indenture and the Notes shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York.
C-9
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be $_____.
The following decreases/increases in the principal amount at maturity of this
Note have been made:
Total Principal
Amount at Notation
Decrease in Increase in Maturity Made by
Date of Principal Principal Following such or on
Decrease/ Amount at Amount at Decrease/ Behalf of
Increase Maturity Maturity Increase Trustee
- --------- ----------- ----------- --------------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
- --------- --------- --------- --------- ---------
C-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount: $
Date:
-------------
Your Signature:
------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
--------------------------------------
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
C-11
EXHIBIT D
TO THE INDENTURE
[FORM OF FACE OF EXCHANGE DEFINITIVE NOTE]
THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO.
CUSIP No.:
---------
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
14.0% Senior Note due 2009
No. $
----- ----------
CYBERNET INTERNET SERVICES INTERNATIONAL, INC., a Delaware corporation
(the "Company", which term includes any successor corporation), for value
received promises to pay to ____________, or registered assigns, upon surrender
hereof the principal sum of $___________, on July 1, 2009.
Interest Payment Dates: January 1 and July 1 commencing January 1,
2000
Record Dates: December 15 and June 15
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
D-1
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK, as Trustee,
By:
-------------------------------
Name:
Title:
Dated:
D-2
[Form of REVERSE]
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
14.0% Senior Note due 2009
1. Interest. CYBERNET INTERNET SERVICES INTERNATIONAL, INC., a
--------
Delaware corporation (the "Company"), promises to pay interest on the principal
amount of this Note at the rate and in the manner specified below. Interest on
the Notes will accrue at 14.0% per annum on the principal amount then
outstanding, and be payable semi-annually in arrears on each January 1 and
July 1, or if any such day is not a Business Day on the next succeeding Business
Day, commencing January 1, 2000, to the Holder hereof. Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from July 8, 1999. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods), and
on any Additional Amounts, from time to time on demand at the rate borne by the
Notes plus 1.5% per annum to the extent lawful. Any interest paid on this Note
shall be increased to the extent necessary to pay Additional Amounts as set
forth herein.
2. Additional Amounts. All payments made by the Company on the Notes
------------------
(whether or not in the form of Definitive Notes) will be made without
withholding or deduction for, or on account of, any present or future taxes,
duties, assessments or governmental charges of whatever nature (collectively,
"Taxes") imposed or levied by or on behalf of Germany or any jurisdiction in
which the Company or any Surviving Entity is organized or is otherwise resident
for tax purposes or any political subdivision thereof or any authority having
power to tax therein or any jurisdiction from or through which payment is made
(each a "Relevant Taxing Jurisdiction"), unless the withholding or deduction of
such Taxes is then required by law. If any deduction or withholding for, or on
account of, any Taxes of any Relevant Taxing Jurisdiction, shall at any time be
required on any payments made by the Company with respect to the Notes,
including payments of principal, redemption price, interest or premium, the
Company will pay such additional amounts (the "Additional Amounts") as may be
necessary in order that the net amounts received in respect of such payments by
the Holders of the Notes or the Trustee, as the case may be, after such
withholding or deduction, equal the respective amounts which would have been
received in respect of such payments in the absence of such withholding or
deduction; except that no such Additional Amounts will be payable with respect
to:
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note by
reason of the Holder or beneficial owner having some connection with the
Relevant Taxing Jurisdiction (including being a citizen or resident or
national of, or carrying on a business or maintaining a permanent
establishment in, or being physically present in, the Relevant Taxing
Jurisdiction) other than by the mere holding of such Note or enforcement of
rights thereunder or the receipt of payments in respect thereof;
D-3
(b) any Taxes that are imposed or withheld as a result of a change in
law after the Issue Date where such withholding or imposition is by reason of
the failure of the Holder or beneficial owner of the Note to comply with any
request by the Company to provide information concerning the nationality,
residence or identity of such Holder or beneficial owner or to make any
declaration or similar claim or satisfy any information or reporting
requirement, which is required or imposed by a statute, treaty, regulation or
administrative practice of the Relevant Taxing Jurisdiction as a precondition
to exemption from all or part of such Taxes;
(c) except in the case of the winding up of the Company, any Note
presented for payment (where presentation is required) in the Relevant Taxing
Jurisdiction; or
(d) any Note presented for payment (where presentation is required)
more than 30 days after the relevant payment is first made available for
payment to the Holder.
Such Additional Amounts will also not be payable where, had the
beneficial owner of the Note been the Holder of the Note, he would not have been
entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
3. Method of Payment. The Company shall pay interest on the Notes
-----------------
(except defaulted interest) to the Persons who are the registered Holders at the
close of business on the Record Date for such interest. Holders must surrender
Notes to a Paying Agent to collect principal payments. The Company shall pay
principal and interest in s or in such other coin or currency of the United
States of America at the time of payment which is legal tender for payment of
public and private debts. Immediately available funds for the payment of the
principal of (and premium, if any), interest and Additional Amounts, if any, in
excess of $100,000 to any payee or group of related payees, such payment will be
made, at the option of the Holder hereof, by wire transfer of same day funds to
the Paying Agent, who in turn will wire such funds to the Holder hereof or to
such individuals as the Holder hereof may in writing to the Paying Agent direct;
provided that the Paying Agent has received written wire transfer instructions
at least fifteen days prior to the date of any such payment.
4. Paying Agent and Registrar. Initially, The Bank of New York will
--------------------------
act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act in any such capacity.
5. Indenture. The Company issued the Notes under an Indenture, dated
---------
as of July 8, 1999 (the "Indenture"), between the Company and The Bank of New
York (the "Trustee"). This Note is one of a duly authorized issue of Exchange
Notes (as defined in the Indenture) of the Company designated as its 14.0%
Senior Notes due 2009. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and the TIA for a statement of them. The Notes are
not secured by any of the assets of
D-4
the Company except to the limited extent provided for by the Collateral
Agreement, and will become general unsecured obligations of the Company upon
disbursement in full of the funds in the Collateral Account. The Notes are
limited in aggregate principal amount to $350 million subject to the terms of
the Indenture. Each Holder, by accepting a Note, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
6. Ranking. The Notes will be general unsecured (except to the
-------
extent provided for by the Collateral Agreement) obligations of the Company and
will rank senior in right of payment to all future Indebtedness of the Company
that is, by its terms or by the terms of the agreement or instrument governing
such Indebtedness, expressly subordinated in right of payment to the Notes and
pari passu in right of payment with all existing and future unsecured
liabilities of the Company that are not so subordinated.
7. Optional Redemption. The Notes will be redeemable, at the
--------------------
Company's option, in whole or in part, on and after July 1, 2004 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Frankfurt (which is expected to be the Frankfurter
Allgemeine Zeitung ) (and if, and so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of such stock exchange shall so require,
published in a newspaper having a general circulation in Luxembourg (which is
expected to be the Luxemburger Wort)) and mailed by first-class mail to each
Holder's registered address, at the redemption prices (expressed as a percentage
of principal amount) set forth below, plus accrued and unpaid interest and
Additional Amounts, if any, to the applicable redemption date (and subject to
the right of Holders of record on the relevant record date to receive interest
and Additional Amounts, if any, and Liquidated Damages, if any, due on the
relevant interest payment date in respect thereof), if redeemed during the
twelve-month period beginning on July 1 of each of the years indicated below:
Redemption
Year Price
- ---- ----------
2004....................................................... 110.000%
2005....................................................... 106.667%
2006....................................................... 103.333%
2007 and thereafter........................................ 100.000%
8. Special Tax Redemption. The Notes may be redeemed, at the option
----------------------
of the Company in whole but not in part, at any time upon giving not less than
30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the principal amount thereof,
together with accrued and unpaid interest to the date fixed by the Company for
redemption (a "Tax Redemption Date"), and all Additional Amounts, if any, then
due and which will become due on the Tax Redemption Date as a result of the
redemption or otherwise, if the Company determines that, as a result of (i) any
change in, or amendment to, the laws or treaties (or any regulations or rulings
promulgated thereunder) of The Federal Republic of Germany (or any political
subdivision or taxing authority thereof) affecting taxation which becomes
effective on or after the Issue Date, or (ii) any change in or new or different
position regarding the application, administration or interpretation of such
laws, treaties, regulations or
D-5
rulings (including a holding, judgment or order by a court of competent
jurisdiction), which change, amendment, application or interpretation becomes
effective on or after the Issue Date, the Company is, or on the next Interest
Payment Date would be, required to pay Additional Amounts, and the Company
determines that such payment obligation cannot be avoided by the Company taking
reasonable measures. Notwithstanding the foregoing, no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Company would be obligated to make such payment or withholding if a payment in
respect of the Notes were then due. Prior to the publication or, where relevant,
mailing of any notice of redemption of the Notes pursuant to the foregoing, the
Company will deliver to the Trustee an opinion of an independent tax counsel of
recognized international standing to the effect that the circumstances referred
to above exist. The Trustee shall accept such opinion as sufficient evidence of
the satisfaction of the conditions precedent described above, in which event it
shall be conclusive and binding on the Holders.
9. Notice of Redemption. Notice of redemption will be given at least
--------------------
30 days but not more than 60 days before the Redemption Date by publishing in a
leading newspaper having a general circulation in New York (which is expected to
be The Wall Street Journal) and in Frankfurt (which is expected to be the
Frankfurter Allgemeine Zeitung) (and, if and so long as the Notes are listed on
the Luxembourg Stock Exchange and the rules of such stock exchange shall so
require, a newspaper having a general circulation in Luxembourg (which is
expected to be the Luxemburger Wort)) and mailed to Holders by first-class mail
at their respective addresses as they appear on the registration books of the
Registrar. Notes in denominations of $1,000 may be redeemed only in whole. The
Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Notes that have denominations larger than
$1,000.
Except as set forth in the Indenture, from and after any redemption
date, if monies for the redemption of the Notes called for redemption shall have
been deposited with the Paying Agent for redemption on such redemption date,
then, unless the Company defaults in the payment of such Redemption Price, the
Notes called for redemption will cease to bear interest and Additional Amounts,
if any, and the only right of the Holders of such Notes will be to receive
payment of the Redemption Price.
10. Change of Control Offer. Upon the occurrence of a Change of
-----------------------
Control, the Company will be required to make an offer to purchase all or any
part (equal to $1,000 in principal amount and integral multiples thereof) of the
Notes on the Change of Control Payment Date at a purchase price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest,
thereon to the date of repurchase plus Additional Amounts, if any, and
Liquidated Damages, if any, to the date of repurchase (and subject to the right
of Holders of record on the relevant record date to receive interest and
Liquidated Damages, if any, due on the relevant interest payment date and
Additional Amounts, if any, in respect thereof). Holders of Notes that are
subject to an offer to purchase will receive a Change of Control Offer from the
Company prior to any related Change of Control Payment Date and may elect to
have such Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
D-6
11. Limitation on Disposition of Assets. When the aggregate amount
-----------------------------------
of Excess Proceeds from Asset Sales exceeds C5.0 million, the Company will be
obligated, within 15 Business Days thereafter, to make an offer to purchase the
maximum principal amount of Notes, that is an integral multiple of $1,000, that
may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon, plus Additional Amounts, if any, and Liquidated
Damages, if any, to the date fixed for the closing of such offer (and subject to
the right of Holders of record on the relevant record date to receive interest
and Liquidated Damages, if any, due on the relevant interest payment date and
Additional Amounts, if any, in respect thereof). If the aggregate principal
amount of Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds, subject to applicable law, the Trustee shall select the Notes to be
redeemed in accordance with the Indenture; provided, however, that no Notes of
$1,000 or less shall be purchased in part. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holders to Elect Purchase"
appearing below.
12. Denominations; Form. The Definitive Notes are in bearer form,
-------------------
without coupons, in denominations of $1,000 and integral multiples of $1,000.
13. Persons Deemed Owners. The Holder of this Note shall be treated
---------------------
as the owner of it for all purposes, subject to the terms of the Indenture.
14. Unclaimed Funds. If funds for the payment of principal, interest
---------------
or Additional Amounts remain unclaimed for two years, the Trustee and the Paying
Agents will repay the funds to the Company at its written request. After that,
all liability of the Trustee and such Paying Agents with respect to such funds
shall cease.
15. Legal Defeasance and Covenant Defeasance. The Company may be
----------------------------------------
discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from its
obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
16. Amendment; Supplement; Waiver. Subject to certain exceptions
-----------------------------
specified in the Indenture, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of at least a majority in
principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
17. Restrictive Covenants. The Indenture imposes certain covenants
---------------------
that, among other things, limit the ability of the Company and its Restricted
Subsidiaries to, incur additional Indebtedness, pay dividends or make other
distributions or investments, repurchase Equity Interests or make certain other
Restricted Payments, enter into certain consolidations or mergers or enter into
certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number
D-7
of important qualifications and exceptions. The Company must annually report to
the Trustee on compliance with such limitations.
18. Successors. When a successor assumes all the obligations of its
----------
predecessor under the Notes and the Indenture in accordance with the terms of
the Indenture, the predecessor will be released from those obligations.
19. Defaults and Remedies. If an Event of Default (other than an
---------------------
Event of Default specified in subsections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest, Additional Amounts, if any,
and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
20. Trustee Dealings with Company. The Trustee under the Indenture,
-----------------------------
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
21. No Recourse Against Others. No stockholder, director, officer,
--------------------------
employee or incorporator, as such, of the Company shall have any liability for
any obligation of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of the Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
22. Authentication. This Note shall not be valid until the Trustee
--------------
or authenticating agent signs the certificate of authentication on this Note.
23. Abbreviations and Defined Terms. Customary abbreviations may be
-------------------------------
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
24. CUSIP Numbers. Pursuant to a recommendation promulgated by the
-------------
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Notes immediately prior to the qualification
of the Indenture under the TIA as a convenience to the Holders of the Notes. No
representation is made as to the
D-8
accuracy of such numbers as printed on the Notes and reliance may be placed only
on the other identification numbers printed hereon.
25. Governing Law. The Indenture and the Notes shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York.
D-9
----------------------------------------------------------------
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's social security or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of
the Company.
The agent may substitute another to act for him.
----------------------------------------------------------------
Date: Your Signature:
-------------- ------------------------
----------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
D-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount:
$
----------
Date:
-------------
Your Signature:
----------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
----------------------------------------
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
D-11